MR. JUSTICE BLATCHFORD delivered the opinion of the court.
This suit was brought in the District Court of the Third Judicial District of the Territory of Utah, on the 13th of June, 1879, by the Victor Sewing Machine Company, against two persons named Crockwell and Bassett, and two others named Streeper and Murphy. On the 28th of June, 1875, the company, of one part, and Crockwell and Bassett, of the other, entered into a written agreement, whereby the former was (1) to deliver sewing machines to the latter, as consignees, at Chicago, on their order; (2) the latter to sell them in Utah Territory, and, if possible, for cash; all promissory notes taken to be guaranteed by the latter and delivered to the former; indorsement of the notes by the latter before such delivery to be such guaranty; all notes taken to be payable to the order of the former, not more than twelve months from the date of sale; (3) the latter to sell all consigned machines and remit for them within four months from date of shipment; on failure to so sell and remit, the former, after the four months, to be at liberty to charge the latter with all machines consigned four months, and not settled for, at their retail price, less forty per cent., and such amounts to be immediately due on demand; (4) the latter to
On the 3d of July, 1875, the four defendants executed, on the back of said agreement, a joint and several bond, under seal, to the plaintiff, in the penalty of $3,000, with the following condition: "The condition of this obligation is such, that if the above bounden George Wallace Crockwell and Charles Henry Bassett, Jr., shall pay unto said Victor Sewing Machine Company all moneys due, or which shall become due, to said Victor Sewing Machine Company, under or pursuant to the within contract, or which shall arise therefrom, whether by, book accounts, notes, renewals or extensions of notes or accounts, acceptances, indorsements, or otherwise, hereby waiving presentment for payment, notice of non-payment, protest or notice of protest, and diligence, upon all notes now or here after executed, indorsed, transferred, guaranteed, assigned, and shall well and truly keep and perform, in all respects, according to its true intent and meaning, the contract or agreement to which this obligation is attached, executed between the said Victor Sewing Machine Company and G.W. Crockwell and C.H. Bassett, Jr., dated at Salt Lake City, the 28th day of June, 1875, then this obligation to be void; otherwise, to remain in full force and virtue. But said contract may be varied or modified by the mutual agreement of said Sewing Machine Company and said G.W. Crockwell and C.H. Bassett, Jr., as to the manner of carrying on said business, or as to the time on which notes taken shall be drawn, or as to the compensation to be paid to said G.W. Crockwell and C.H. Bassett, Jr., or as to the period at which said G.W. Crockwell and C.H. Bassett, Jr., shall report to said company for the machines they may sell, or as to the territory on which said machines shall be shipped or sold, or as to the place from which said machines shall be shipped, and such changes and modifications or variations shall in nowise affect or impair our liability on this bond."
This suit is brought to recover the amount of the penalty of the bond. The complaint sets forth in hæc verba the agreement
The complaint further alleges, that the defendants failed to perform the condition of the bond that Crockwell and Bassett should pay to the plaintiff all moneys due or to become due to it under the agreement, and should perform the agreement, in that, the plaintiff, between July 3, 1875, and February, 1876, under clause six of the agreement, at the request of Crockwell and Bassett, consigned to them parts of machines at forty per cent. discount from list prices, and attachments at the lowest wholesale rates, to be settled for in cash by them every thirty days, unless time was agreed for, when twenty per cent. was to be added to regular cash prices; but Crockwell and Bassett did not settle therefor, with cash, in thirty days, and had not paid therefor; that the money which, by clause six, they were required to pay to the plaintiff, amounted to $87.97;
The complaint further alleges, that the defendants failed to perform the condition of the bond that Crockwell and Bassett should pay the plaintiff all moneys due, or which should be come due, to it, under the agreement, or which should arise therefrom, and should perform the agreement, in that, the plaintiff, between July 3, 1875, and February, 1876, under the agreement and bond, at the request of Crockwell and Bassett, consigned to them sewing machines, which they sold after July 3, 1875, and before April, 1876; that, under the bond and clause eight of the agreement, Crockwell and Bassett, between the dates named, gave to the plaintiff their personal promissory notes, for the price of the machines, and at the rates for the machines, mentioned in the agreement; and that "a list and description of said notes is herewith filed, marked Exhibit C, and made a part of this complaint." Exhibit C shows the date of each note, the time of its maturity, that all the notes were made by Crockwell and Bassett and payable to the plaintiff, and the amount of each note, or the balance due thereon, exclusive of interest. The complaint alleges that the whole amount of them is $1,766.10, to which is to be added $609.93, for interest on them, and $237.60, for attorney's fees for collection, making, in all, $2,613.63, and that Crockwell and Bassett have failed to pay that sum and owe it to the plaintiff.
The complaint further alleges, that the defendants failed to perform the condition of the bond that Crockwell and Bassett should pay to the plaintiff all moneys due, or which should become due, to it, under the agreement, or which should arise
It thus appears that the suit covers four claims: (1) proceeds of sales of machines; (2) purchase price of attachments; (3) personal notes for machines consigned; (4) guaranteed notes for machines consigned.
Murphy and Streeper answered, denying specifically the breaches alleged; setting up that all the items in Exhibits A and B accrued more than two years before the suit was commenced, and it was not commenced within the time prescribed by the laws of Utah Territory; claiming a further credit of $203 on Exhibit A; denying that the non-payment of the notes covered by Exhibit C or by Exhibit D was a breach of the condition of the bond; and alleging that Crockwell and Bassett had no notice of the non-payment of the notes covered by Exhibit D. The answer further sets up, that, in March, 1876, the plaintiff, by its agent, applied to Murphy to become surety on a second bond, on a new contract with Crockwell and Bassett; and that a settlement, amounting to an accord and satisfaction, was had between the plaintiff and Crockwell and Bassett, as to the matters covered by the complaint, and its agent informed Streeper and Murphy thereof, and that the existing bond was discharged, and Murphy signed the second bond on that assurance, Crockwell and Bassett being then able to indemnify Streeper and Murphy
The cause was referred to a referee to "hear, determine and report a judgment." He reported findings of fact and conclusions of law. He reported the facts to be as alleged in the complaint, as to the items of Exhibits A, B, C and D, with a credit on Exhibit A of $31.22, and that there was due from Crockwell and Bassett, on Exhibit C, at least $2,750, exclusive of allowance for attorney's fees, and on Exhibit D over $450, and due and unpaid from Crockwell and Bassett to the plaintiff, on account of the several matters set forth in the complaint, more than $3,000; that the Exhibits fully credited all sums remitted by Crockwell and Bassett; and that there was no settlement or accounting between Crockwell and Bassett and the plaintiff, and no adjustment of their indebtedness to it, and no agreement or accord or satisfaction made in regard to such indebtedness. The report then proceeded: "8th. In March, 1876, a new contract for the sale of machines was made between the plaintiff and said Crockwell and Bassett, and a new bond given by the latter, upon which the defendant Edmund H. Murphy became a surety. Pending the negotiations for such new contract, and before said Murphy became surety on the new bond, he inquired of George Wilkinson, who was the agent of the plaintiff to negotiate the new agreement, in regard to the past business and the object of the new bond, and said Wilkinson informed him, in substance, that said Crockwell and Bassett had done well, that the business was satisfactory to the plaintiff, and the plaintiff was about to give them a new contract, under which they would get a larger per cent. and have a better opportunity to make money. No other or further representations were made to said defendant Murphy prior to the execution by him of the new bond, and said representations were not false. At that time no settlement had been made of the accounts, but, from casually looking over the accounts, it appeared that Crockwell and Bassett had, in the shape of notes and leases, far in excess of what they owed, and, had the notes turned over to the plaintiff, and the notes and leases held by them, been good and collectible, the same would have far exceeded their liabilities. At that
The referee found the following conclusions of law:
"1. The non-payment of the several sums found due and unpaid from Crockwell and Bassett to the plaintiff, as in the findings of fact specified, constitute breaches of said bond, and for which breaches the sureties as well as the principals are liable.
2. The action on the bond at the time of the commencement thereof was not barred by the statute of limitations, in respect to any of said breaches.
3. The plaintiff is not estopped, nor its action barred or affected, against any of the debts, by reason of any representations made to the defendant Murphy or Streeper prior to or since the execution of the second bond referred to in the answer, nor was the execution of the second bond by the sureties procured by fraud.
4. The plaintiff is entitled to judgment that it have and recover of and from the defendants the sum of three thousand dollars, and the costs of this action, to be taxed."
Streeper and Murphy filed exceptions to the findings of fact after the seventh, and to all the conclusions of law. Judgment was entered for $3,000 and costs, against all the defendants. Streeper and Murphy appealed to the Supreme Court of the Territory, which affirmed the judgment. Murphy having afterwards died, his administratrix and Streeper appealed to this court. (See Victor Sewing Machine Co. v. Crockwell, 2 Utah. 557, and 1 West Coast Reporter, 428.)
It is also contended, as to the first two causes of action, that the liability of the defendants arose on the sale of goods to the consignees, and that the two years' limitation applies to those causes of action. Murphy and Streeper were not parties to the agreement. Their liability arose on the bond exclusively. All the defendants were parties to the bond. This is a suit on the bond, and what are called by the defendants, causes of action, are only breaches of the condition of the bond. As the agreement was executory, it was necessary to set out consignments and sales, and resulting amounts due, to establish breaches. Even as regards the consignees, an action against them, if not on the bond, would be on the written agreement. The condition of the bond is, that the consignees shall pay all moneys which shall become due "under or pursuant to the within contract, or which shall arise therefrom, whether by book accounts, notes, renewals or extensions of notes, or accounts." We are of opinion that, this suit being on a written instrument,
It is also urged, that Streeper and Murphy are not bound for the payment of the notes made or guaranteed by the consignees, and that their obligation was discharged when those notes were made or guaranteed. But it appears clear to us that the condition of the bond is, that the consignees shall pay all money which shall become due, by their notes, or their indorsements, or otherwise (the agreement making the indorsement a guaranty of payment). Language could hardly be stronger or more full. Dixon v. Holdroyd, 7 Ell. & Bl. 903.
It is also urged, that the facts found constitute an estoppel, as to Murphy and Streeper. The findings of fact negative the allegations of the answer setting up this defence. What occurred in November, 1876, is outside of any issue raised by the answer.
A point is made that the complaint does not aver that Murphy and Streeper had notice of the default of the consignees; that no notice is shown; and that the bond contains no waiver of such notice. Assuming that the point may now be taken, the findings are silent as to notice, but they show there was no prejudice for want of notice. Moreover, the condition of the bond is absolute, that the consignees shall pay all moneys which shall become due to the plaintiff under the agreement, the obligors waiving notice of non-payment on all notes executed, indorsed or guaranteed. As Murphy and Streeper did not make or indorse the notes, their waiver could only apply to a default by the consignees.
We see no error in the record, and
The judgment is affirmed.