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Philip M. Gundlach v. George Fischer
Per Curiam: A fair and reasonable construction of the agreement makes Fischer the agent of Gundlach & Esler, for the sale of machines, until the first of October, 1867. And the appellees, by their obligation, undertook for the faithful discharge of all of Fischer’s duties as such agent, and that he should account for and pay all moneys, notes, etc., to Gundlach & Esler, for property and for machinery received prior to that date.
It appears, from the evidence, that he received machinery prior to the first day of October, 1867, amounting to $2023.92. For his faithful account of that sum his sureties are liable, but they are not for machines or property received after that date. The agreement only contemplated, that he should act as agent up to that time, and, hence, the sureties only bound themselves that he should account for machinery received before that date.
The evidénce, however, fails to show that Fischer has accounted for all the money and notes received on the sale of the machinery received before the first of October, 1867. Even by Fischer’s evidence, it appears that there is some amount still due Gundlach & Esler, for machinery received within the period for which the sureties were bound, and for whatever sum that may be so due they are liable, and the jury should have found that amount, by their verdict.
Fischer does not pretend that he had paid the full amount received for the sale of machinery so furnished him, and appellants’ witnesses make the amount over two hundred dollars, after deducting the note sent him for collection after the first of October, and all payments. But allowing him a credit of all he claims, still he would owe them, for which his sureties would be liable, at least $87 and interest. The evidence, as given in this transcript, shows at least that amount.
We are clearly of opinion, that the jury misunderstood the evidence and erred in the finding of the verdict, and the court below should have granted a new trial. The judgment of the court below is reversed and the cause remanded. Judgment reversed.