67 So. 318 | Ala. | 1914
Lead Opinion
R. G. Banks made a contract with the Alabama Fuel & Iron Company, whereby he undertook to handle coal for said fuel and iron company in the city of Montgomery. The contract between the parties was reduced to writing. A copy of it appears on pages, 3, 4, and 5, of the transcript, and the reporter will set it out.
The performance of the contract by Banks with said Alabama Fuel & Iron Company was guaranteed by the Alabama Fidelity & Casualty Company. A copy of the contract of guaranty is set out on pages 5 and 6 of the transcript, and the reporter will also set out a copy of this contract.
A further examination of the contract will show that among the terms"of the contract which was made by the plaintiff with Banks was the' following: “He is to keep an accurate account showing the amount of coal sold, to whom sold, the price paid therefor, and the sum collected thereon; and is to render monthly statements on or before the 5th day of each month, showing the amount of such sales, and paying the party of the first part, on or before the 20th of each month, for all coal shipped to the party of the second part up to the first day of that same month, except in such cases as maybe covered by special agreement in writing between said parties.”
The above-quoted excerpt from the contract made by Banks with the plaintiff — especially that part of it providing for monthly statements — was dictated by ordinary business prudence, and the contract with Banks, without, that provision, would have been materially different from the contract which was actually made. The provision requiring monthly statements was one which was calculated to give to the plaintiff reasonable supervision over the peculiar agency which was created by the contract, and as the defendant, in its contract of suretyship, incorporated the contract of Banks with .the plaintiff into the contract of suretyship, the provision as to monthly statements may have had its influence upon the defendant when it entered into the contract of suretyship. An agent who, under the terms of his contract with his principal, is required 'to make monthly statements of his acts and doings as agent, is much less likely to fall into habits of negligence or as to that matter, into acts of actual wrong against his principal, than is an agent who, under the terms
The defendant, among other pleas to' the complaint, filed the following: “(5) Defendant says that in and by the terms of said contract Banks was to keep an accurate account showing the amount of coal sold, to whom sold, the price paid therefor, and the sum collected thereon, and to render monthly statements on •or before the 5th of each month showing the amount of such sales, and to pay the plaintiff on or before the 20th of each month for the coal shipped to him up to the first day of that same month, and plaintiff avers that the defendant relieved said Banks of his obligation to comply with this term of said contract without the consent of this defendant.”
We do not find any plea, which the trial judge allowed to remain with the jury, which presents the defense which the defendant, by the above plea, undertook to make to this action. In our opinion counsel for appellant, in his brief, has properly presented the ruling of the trial court in sustaining the demurrer of the plaintiff to the above plea to us for our consideration, and the discussion below is confined to the
In that case this court took occasion to show that the two rules declared in Saint v. Wheeler & Wilson Mfg. Co., supra, were not in conflict with the rule last quoted, and in that case the court also quoted with approval the following language of the Supreme Court of the United States, in the case of Prairie State Bank v. United States, 164 U. S. 227, 17 Sup. Ct. 142, 41 L.
To the same effect are the cases of Anderson v. Bellenger & Ralls, 87 Ala. 334, 6 South. 82, 4 L. R. A. 680, 13 Am. St. Rep. 46, and Manatee County State Bank v. Weatherly, 144 Ala. 655, 39 South. 988.
While we are on this subject we desire to say that we are not unmindful of the salutary proposition that: “The contract of suretyship is not that the obligee will see that the principal performs its condition, but that the surety will see that he performs them.” — Williams v. Lyman, 88 Fed. 237, 31 C. C. A. 511.
But the contract which the surety binds himself to see performed is the contract which he actually underwrites for his principal, and not some other contract which his principal and employer may see proper to make for themselves. — First Nat. Bank v. Fidelity & Dep. Co., supra; Anderson v. Bellenger & Ralls, supra; Manatee County State Bank v. Weatherly, supra; Prairie State Bank v. U. S, supra.
In discussing the question presented by the demurrer to the above plea, we are not dealing with the question of the mere neglect of the employer to require his agent to comply with the terms of his contract, but we are dealing with the question as to whether the courts will force a surety to answer for the default of his principal when the employer has relieved the principal of a material requirement of the contract to the performance of which the surety bound himself. A careful examination of the cases of Aetna Ins. Co. v. Fowler, 108 Mich. 557, 66 N. W. 470; Home Insurance Co. v. Holway, 55 Iowa, 571, 8 N. W. 457, 39 Am. Rep. 179; Williams v. Lyman, 88 Fed. 237, 31 C. C. A. 511;
4. While there is some divergence of opinion among courts of last resort with reference to some of the questions presented by this record, it seems to us that the rules which were laid down by this court in Saint v.
Reversed and remanded.
Concurrence Opinion
(Concurring.) —I subscribe to the principle of the leading opinion. I think, however, that the court in sustaining plea 5 against the demurrer addressed to it has departed from the rule, as this court has heretofore construed it, which requires a plea to set out the facts relied upon in defense. For example it was held in Osborne v. Alabama Steel & Wire Company, 135 Ala. 571, 33 South. 687, that a plea of contributory negligence — which, I take it, is entitled on demurrer to as much consideration as any other plea of confession and avoidance — to withstand demurrer, must aver a state of facts to which the law attaches the conclusion of negligence on the part of plaintiff. Plea 5 in the present case merely states the conclusion that plaintiff “relieved” Banks of his contract to duly report sales and pay over money at stated intervals. Under this plea, defendant, it may be presumed, may have intended to prove, either an express agreement between plaintiff and Banks relieving the latter of his duty under the contract defendant had guaranteed, or that Banks had been by implication relieved, so far as defendant was concerned, by consequence of his failure to report sales and pay over money and plaintiff’s failure to report that fact to defendant within a reasonable time — and this last, as the further progress of the
