White Sewing-Mach. Co. v. Saxon

Decision Date18 April 1899
Citation25 So. 784,121 Ala. 399
PartiesWHITE SEWING-MACH. CO. v. SAXON ET AL.
CourtAlabama Supreme Court

Appeal from circuit court, Walker county; James J. Banks, Judge.

Action by White Sewing-Machine Company against J. W. Saxon and others. From a judgment in favor of defendants John B Richardson and E. W. Miller, plaintiff appeals. Affirmed.

This action was brought to recover for the breach of a bond which had been given by the defendants to the plaintiff to secure the faithful performance by Saxon of the duties as agent of the plaintiff company. The bond was set out in the complaint and was conditioned that the said J. W. Saxon should pay to the White Sewing-Machine Company all moneys or indebtedness obtained or incurred by said Saxon through his agency in the sale of sewing machines for the plaintiff, and that he should faithfully perform all the duties incident to such agency. The stipulation of the bond relating to the liability of each person signing it, without any regard to any understanding that it should be signed by other persons, is copied in the opinion. This bond was executed on August 16, 1893, and the plaintiff averred that the said Saxon was indebted to it in the sum of $986.86 for goods, wares, and merchandise sold by plaintiff to J. W. Saxon on the strength of said bond, and in pursuance of the conditions thereof, commencing on August 22 1893, and continuing until April 30, 1894, and that the said Saxon had failed to pay over to the plaintiff the sum thus due, and thereby there was a breach of said bond, rendering the defendants liable. To this complaint the defendants demurred, but, the demurrers being overruled, it is unnecessary to set them out on this appeal.

The defendants pleaded the general issue, and, among others, the following special pleas, each of which was verified by affidavit of the respective defendants: "(7) Comes the defendant J. B. Richardson, and for answer to the complaint says that this defendant delivered the said bond to J. W Saxon to become an instrument executed by this defendant only on condition that the same should be executed by three or four other good men, and then delivered to plaintiff, but was not to be delivered to plaintiff until the said three or four other good men had executed it,-all of which the said plaintiff knew at the time it acquired possession of said bond; and the said plaintiff, knowing these facts fraudulently procured the possession of the said bond from the said J. W. Saxon, and fraudulently concealed from these defendants the delivery of the said bond by J. W. Saxon without the signatures of the said three or four good men who were to sign before the said J. W. Saxon had authority to deliver it, until after the said J. W. Saxon had operated under it as alleged in the complaint. (8) Comes the defendant J. B. Richardson, and for further answer to the said complaint says that there was, at the time this defendant signed it, a memorandum attached to said bond upon which the action is founded, in words as follows: 'N.B. Each signature must be witnessed by some person, who shall sign his name as such witness in the blank space to the left of the line on which such signature appears;' and this defendant says that neither his signature to said bond nor that of his co-surety was witnessed by any person who signed his name as a witness, but this defendant says that W. G. Ware, who was the duly-authorized agent of the plaintiffs, after he had obtained possession of the same, without the knowledge or consent of this defendant, placed his (said Ware's) name as a witness to the signatures to said bond, with a fraudulent intent. (9) Comes the defendant J. B. Richardson, and for further answer to the said complaint says that at the time the said plaintiff, by their agents, obtained the possession of the said bond which is the foundation of this action, there was no subscribing witness thereto, and this defendant says that the said plaintiffs, without the knowledge or consent of this defendant, procured the name of W. G. Ware to be placed thereto as a subscribing witness, with a fraudulent intent." "(11) Comes the defendant E. W. Miller, and for answer to the complaint says that he never executed the bond sued on, either by himself or by any one authorized to bind him. (12) Comes the defendant E. W. Miller, and for answer to the complaint says that this defendant delivered the said bond to J. W. Saxon to become an instrument executed by this defendant only on condition that the same should be executed by three or four other good men, and then delivered to plaintiff, but was not to be delivered to plaintiff until the said three or four other good men had executed it,-all of which the said plaintiff knew at the time it acquired possession of said bond; and the said plaintiff, knowing these facts, fraudulently procured the possession of the said bond from the said J. W. Saxon, and fraudulently concealed from these defendants the delivery of the said bond by J. W. Saxon without the signatures of the said three or four good men who were to sign before the said J. W. Saxon had authority to deliver it, until after the said J. W. Saxon had operated under it as alleged in the complaint. (13) Comes the defendant E. W. Miller, and for further answer to the complaint says that there was, at the time this defendant signed it, a memorandum attached to said bond upon which the action is founded, in words as follows: 'N. B. Each signature must be witnessed by some person, who shall sign his name as such witness in the blank space to the left of the line on which such signature appears; ' and this defendant says that neither his signature to said bond nor that of his co-surety was witnessed by any person who signed his name as a witness, but this defendant says that W. G. Ware, who was the duly-authorized agent of the plaintiffs, after he had obtained possession of the same, without the knowledge or consent of this defendant placed his (said Ware's) name as a witness to the signatures to said bond, with a fraudulent intent. (14) Comes the defendant E. W. Miller, and for further answer to the said complaint says that at the time the said plaintiffs, by their agents, obtained the possession of the said bond which is the foundation of this action, there was no subscribing witness thereto, and this defendant says that the said plaintiffs, without the knowledge or consent of this defendant, procured the name of W. G. Ware to be placed thereto as a subscribing witness, with a fraudulent intent."

To the seventh and twelfth pleas the plaintiff demurred upon the following grounds: "(1) Because it does not allege the names of the 'three or four other good men who were to sign the bond.' (2) It is too indefinite and uncertain in its averments as to the condition upon which said defendant signed said bond. (3) Said plea shows on its face that defendant is estopped to deny the validity of said bond inasmuch as it shows on its face that he signed and delivered the bond to the principal debtor, J. W. Saxon, and thereby put it in the power of said Saxon to make a valid delivery of said bond." To the eighth, ninth, thirteenth, and fourteenth pleas the plaintiff demurred upon the following grounds: "(1) Because the matters and things therein alleged as an answer to said complaint are immaterial, and, if true, constitute no defense to the action. (2) The fact that said Ware signed his name to said bond as a witness after the same was signed by defendant and delivered to him does not vitiate the bond, nor in any manner affect its validity. (3) The said bond was such an instrument as did not need to be witnessed or attested in order to its validity. (4) The plea fails to show what the fraudulent intent was with which Ware signed his name to said bond." The demurrers to each of these pleas were separately overruled. To the seventh, eighth, ninth, twelfth, thirteenth, and fourteenth pleas the plaintiff filed the following replications: "(1) The plaintiff denies the averments therein contained. (2) Plaintiff says said defendants are estopped to make said defense after they signed said bond, and plaintiff acquired possession thereof. They, having knowledge of the delivery of said bond to plaintiff, permitted plaintiff to sell goods on said bond to said Saxon, without objection, till long after the goods were sold and delivered to Saxon under this bond for the price of which this action is brought. (3) After said bond was delivered to plaintiff in the manner stated in said pleas, said defendants well knew that said J. W. Saxon was operating under said bond, and getting credit from plaintiff by reason thereof, upon the faith and credit of said bond as a valid instrument; and yet said Miller and Richardson permitted said Saxon to continue to buy goods under said bond without ever informing plaintiff of said alleged defense to said bond till long after the accounts and notes were made upon which this action is based, and therefore said Miller and Richardson are estopped to take advantage of the matters of defense set up in said pleas. (4) Said defendants waived their rights to make the defense set up in said pleas, in the condition of the bond sued on, as appears fully from the complaint by the following stipulation, viz.: 'Each one signing this bond is bound by the purport of it without any regard to any understanding that any person should also sign this instrument; and the person to whom this is intrusted has absolute authority to deliver it, and the same is made and shall be considered without reference to any other instrument or agreement whatsoever; and any agreement or arrangement with any of the signers hereof to discharge or release any of them shall be void, and of no binding effect upon the White...

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22 cases
  • McClintock v. Ayers
    • United States
    • Wyoming Supreme Court
    • 1 March 1927
    ... ... estopped them from setting up this defense; White Co. v ... Saxon, (Ala.) 25 So. 784; Baird v. Stephan, (N ... D.) 204 N.W. 188; Surety Co ... Knight v. Hurlbut, 74 Ill. 133; New Home Sewing ... Mach. Co. v. Simon, 104 Wis. 120, 80 N.W. 71; Williston ... on Contracts, Sec. 1244; 28 C. J. 914-915 ... ...
  • Birmingham News Co. v. Moseley
    • United States
    • Alabama Supreme Court
    • 17 March 1932
    ... ... amended. McConnon & Co. v. Kirby, 211 Ala. 440, 100 ... So. 764; White Sewing Mach. Co. v. Saxon, 121 Ala ... 399, 25 So. 784; Sharp v. Allgood, 100 Ala. 183, 14 ... ...
  • Pasquale Food Co., Inc. v. L & H Intern. Airmotive, Inc.
    • United States
    • Alabama Court of Civil Appeals
    • 18 July 1973
    ...of McConnon & Co. v. Kirby, 211 Ala. 440, 100 So. 764, decided by the supreme Court in 1924, and the case of White Sewing Machine Co. v. Saxon, 121 Ala. 399, 25 So. 784 (1898), to support his contention that the trial court erred to reversal in excluding certain parol testimony allegedly sh......
  • W.T. Rawleigh Medical Co. v. Wilson
    • United States
    • Alabama Court of Appeals
    • 7 December 1912
    ... ... Wright v. Lang, 66 Ala. 389." ... [7 ... Ala.App. 250] In a later case--White Sewing Machine Co ... v. Saxon, 121 Ala. 404, 405, 25 So. 784, 787--McClellan, ... C.J., ... ...
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