Singer Manufacturing Co. v. Freerks

Cochrane, J. This action was submitted to the court below for determination upon an agreed statement of facts. Defendant had judgment, and plaintiff appealed. The action is founded upon the following bond, which was duly signed and executed by defendants at the request of S. S. Qement, the principal therein, and was left with said Clement to be, and it was by him, delivered to plaintiff, ■towit: “Know all Men by These Presents, That we, S. S. Clement, of Wahpeton, North Dakota, as principal, and George W. Freerks and George T. Propper, as sureties, obligors, are hereby held and firmly bound unto ‘The Singer Manufacturing Company,’ a corporation, duly incorporated and organized under the laws of the state of New Jersey, doing business in the state of North Dakota, and whose corporate existence and capacity to sue are hereby distinctly admitted, in the sum of five hundred dollars, and ten per cent attorney’s fees; for the payment of which, well and truly to be made to the said ‘The Singer Manufacturing Company,’ their successors, representatives, or assigns, at their office in ther city o£ Fargo, North Dakota, without relief from appraisement, valuation, or stay laws, we bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals. Dated the 15th day of January, one thousand nine hundred. “The condition of the above obligation, which is expressly intended as a continuing guaranty, is such, that whereas the above bounden S. S. Clement has entered the employ of the said ‘The Singer Manufacturing Company’ for the transaction of such business as they may intrust to him. Now, therefore, if the said S. S. Clement shall well and faithfully perform his duties as such employe, pay to said company all rebates or other dues, and account for, pay over, and deliver to said company, all moneys, credits, notes, leases, accounts, receipts, books, property and effects of any [598] and every kind and nature whatsoever belonging to them that may be entrusted to him, or may.come into his possession or under his control; by virtue of his said employment or otherwise; and whether under or in the absence of any present or future new or different agency or appointrnent, contract, agreement or understanding, covering the same or any lesser or greater duties or responsibilities, verbal or written, or any change whatever therein; either with or without notice to either of said obligors, other than the said employe, and repay to the said company all outlay and expense whi^h they may incur, in ascertaining the nature and extent of a violation of any of the conditions of this bond, or for ascertaining and adjusting any dispute or difference touching the same, then this obligation to be void; but otherwise to remain in full force and effect. And it is 'agreed that receipts issued or lost, or for any reason not returned by the said employe, and his reports by receipt stubs or otherwise, to the said company, of collections made by him, shall be conclusive evidence as against each and both of said obligors that the said 'employe received and collected the moneys mentioned in said receipts and reports. And the said obligors hereby waive all right of homestead and other exemptions under the laws of said state as against any judgment which may be obtained upon this obligation. “S. S. Clement. (Seal.) “George W. Freerks. (Seal.) “George T. Propper. (Seal.) “Signed, sealed and delivered in presence of us: “A. G. Divet. “W. M. Hughes.” Clement was employed as agent, salesman, and collector for the plaintiff corporation on January 10, 1900. His duties were as enumerated in the bond. In consideration of said employment, Clement agreed that he would give to the plaintiff a guaranty or bond for the due and faithful performance of said agreement on his part, and the defendants signed the foregoing instrument as the guaranty or bond agreed to be furnished by said Clement. The only person who requested defendants to sign the bond was Clement, and the plaintiff did not, after the receipt of the instrument, or at any time, communicate to defendants, or either of them, notice of its acceptance of the same. The bond was delivered to plaintiff on January 15, 1900, and the employment of Clement [599] terminated on the 15th day of November, 1901. Between these dates Clement defaulted in the sum of $626.02. Demand of payment was made upon Clement before suit, and, demand for damages to the amount of the penalty of the bond, including $50, attorney’s fees, was also made upon the respondents. Neither demand was complied with. Respondents’ position is, and the trial court found, that the bond above set forth was a mere offer of guaranty by the defendants, and did not become binding, because no notice of acceptance of the instrument as a guaranty was ever communicated to the defendants, or either of them, by the plaintiff. The case was considered as within the rule declared in Standard Sewing Machine Company v. Church, 11 N. D. 420, 92 N. W. 805. In this the trial court erred. The mutual assent necessary to constitute this a binding contract, and which distinguished it from a mere unaccepted offer, is found in the facts stipulated: “That in consideration of his employment Clement agreed that he would give to the plaintiff a guaranty or bond for the due and faithful performance of his agreement, and that the defendants signed the instrument as the guaranty or bond agreed to be furnished by Clement.” When respondents signed this bond, and left it with Qepient to deliver to the machine company as the bond Clement had agreed to furnish, the mutual assent was given and sufficiently evidenced, and no further act or notice of acceptance was required to make it a binding obligation. The machine company had agreed in advance to accept this bond, and could not refuse to do so. The respondents, by intrusting the bond to Clement for delivery to the machiné company as the bond he had agreed to give in part consideration of his employment, constituted Clement their agent for the purpose of making such delivery. By such act they enabled Clement to enter upon the discharge of the duty of his employment, and to get the money and property of plaintiff which he misappropriated; and they cannot now be heard to repudiate this obligation, to the detriment of the party it was given to secure. Wolf v. Driggs, 44 N. J. Eq. 363, 14 Atl. 480; Haywood v. Townsend (Sup.) 38 N. Y. Supp. 517; Russell v. Freer, 56 N. Y. 67; Singer Mfg. Co. v. Drummond, 40 Hun. 260; Snyder v. Click, 112 Ind. 293, 13 N. E. 581; Butterfield v. Storage Co., 11 Utah 194, 39 Pac. 824; Taylor Co. v. King, 73 Iowa 153, 34 N. W. 774, 5 Am. St. Rep. 666. This disposes of the only defense' in the case. [600] (98 N. W. Rep. 705.)' Upon the argument and in the briefs of counsel an interesting discussion was presented as to whether the contract in suit was a contract of suretyship or one of guaranty. This point it is unnecessary to decide. If, technically, it is a contract of guaranty, defendants are liable. This is also true if adjudged a contract of suretyship under the facts stipulated. The limit of liability under the bond is $550, including attorney’s fees. The judgment appealed from is reversed. The district court is directed to order judgment'for plaintiff for $550, with interest. Appellant will recover costs. All concur.