White Sewing Mach. Co. v. Dakin

• Decision Date: 28 July 1891
• Citation: 86 Mich. 581,49 N.W. 583
• Court: Michigan Supreme Court
• Parties: WHITE SEWING-MACH. CO. v. DAKIN et al.

49 N.W. 583

86 Mich. 581

WHITE SEWING-MACH. CO. v. DAKIN et al.

Supreme Court of Michigan

July 28, 1891

Error to circuit court, Saginaw county; JOHN A. EDGET, Judge.

Action by White Sewing-Machine Company against Milo H. Dakin and others to recover on a penal bond. Judgment for plaintiff. Defendants bring error. Affirmed.

Hanchett Stark & Hanchett, for appellants.

John M. Brooks, for appellee.

CHAMPLIN C.J.

This is an action on a bond given by Milo H. Dakin as principal, and Aaron T. Bliss and Anthony Byrne as sureties, to the plaintiff, to secure any indebtedness incurred by Dakin to the plaintiff while acting as its agent in selling sewing-machines. In January, 1888, Mr. Van Ness, an agent of the plaintiff, employed to procure dealers in the White sewing-machines, made a contract with the defendant Dakin, by which Dakin was given the exclusive right to deal in White sewing-machines within certain territory. It is the custom of the plaintiff to require dealers to give a bond to secure the company on any indebtedness to them which may be incurred by such dealers. Blank forms are furnished by the company and are filled out by Van Ness when needed. Mr. Dakin signed the bond in this case, and obtained the signatures of the defendants Bliss and Byrne as sureties, and delivered it to Mr. Van Ness, who forwarded it to the plaintiff. The formal part of the bond, before stating the conditions, reads as follows: "Know all men by these presents, that Milo H Dakin, Aaron T. Bliss, and A. Byrne are hereby held and firmly bound, severally and individually, unto the White Sewing-Machine Company in the sum of one thousand dollars lawful money of the United States of America, to be paid to the White Sewing-Machine Company, their representatives or assigns; for which payment, (together with 10 per cent attorney's fees thereon in case of suit on this bond,) well and truly to be made, they bind themselves, their heirs, executors, and administrators, and separate estates, jointly and severally, firmly by these presents. Sealed with their seals. Dated the twenty-fifth day of January, one thousand eight hundred and eighty-eight." Then follows the condition of the bond, which was to pay, or cause to be paid, any and every indebtedness or liability then existing, or which may thereafter in any manner exist, or be incurred on the part of Milo H. Dakin to the White Sewing-Machine Company, etc. The words "attorney's fees" appear to have been interlined in the bond between the words "10%" and the word "thereon." The only questions presented by the record are- First, was the insertion of the words "attorney's fees?7D a material alteration, if inserted after the bond was executed? second, if inserted by Van Ness after it was executed, and before it was forwarded by him to the plaintiff for acceptance or rejection, did it render the bond invalid in hands of the plaintiff? Clearly the alteration by the insertion of the words "attorney's fees" was immaterial. An alteration, to be material, must be in a material part of the instrument, and affect the rights and liabilities of the parties thereto. Amer. & Eng. Enc. Law, p 505. This instrument is not a money bond, and the action upon it is regulated by the statute, which provides that, "when an action shall be prosecuted in any court of law, upon any bond for the breach of any condition other than for the payment of money, or shall be prosecuted for any penal sum for the non-performance of any covenant or written agreement, the plaintiff, in his declaration, shall assign the specific breaches for which the action is brought." And "upon the trial of such action, if the jury find that any assignment of such breaches is true, and that ...