Domestic Sewing Machine Co. v. Webster

47 Iowa 357 | Iowa | 1877

Day, Ch. J.

contract • ■bond: surety, The condition of the bond executed by the defendant, Wright, as surety, is that the defendant, Webster; s^ia^ pay any and every indebtedness or liability existing .at the time of making the bond, or which might thereafter in any manner exist or be incurred on the part of Webster to the said' Sewing Machine Company, “whether such indebtedness or liability shall exist in the Shape of book accounts, notes, renewals or extensions of notes or accounts, acceptances, indorsements or otherwise.” The bond, upon its face, appears to embody a full and complete contract. The substance and effect of the answer, however, is that the defendant, Wright, did not by the execution of the bond sued on become a surety for the payment of all the liabilities enumerated in the bond; that at the time of the execution of the bond the plaintiff and the defendant, Webster, tentered into another distinct contract in writing, and that the defendant, Wright, obligated himself that Webster should perform the conditions of this contract, and not the conditions enumerated in the bond. It is alleged that by the terms of this written agreement Webster became the agent of plaintiff for the sale of sewing machines, to be supplied him in shipping-order at Chicago or other distributing point, at 33-J per cent discount, to be settled for by Webster by note at three months from date of invoice, payable to plaintiff at First National Bank of Rock Island, and that in payment of these notes of Webster plaintiff agreed to accept customers’ notes payable in six months, properly indorsed. It is alleged that defendant, Wright, executed the bond to secure the performance of this agreement, and for no other purpose. It is very apparent that the obligation which defendant alleges he assumed is quite different from the one which, upon the face of the bond, he appears to have assumed. He alleges that he simply agreed that Webster would settle with his own notes payable at three months from date of invoice, and would turn over in payment of these customers’ notes, properly indorsed, payable at six months, whereas in the bond he undertakes that Webster shall pay “ any and every indebtedness or liability now existing, or which may hereafter in any manner exist or be incurred on the part of the said Wm, Webster to the said Domestic Sewing Machine Company.” It is quite true that a written agreement may be embraced in several separate papers, and, when it becomes apparent that such is the case, all must be construed together in order to discover the intention of the parties. But the bond and the agreement referred to in this case have no necessary relation to, or dependence upon, each other. It is quite reasonable that plaintiff should have entered into the contract with Webster, referred to in the answer, and that Wright should have become surety that Webster would pay to plaintiff every indebtedness or liability then existing, or which might thereafter in any manner exist or be incurred. Neither the bond nor the agreement provides or implies that the plaintiff and Webster might not change the terms of the contract existing between them. The law imposes no restriction upon such change in the absence of any valid agreement that it shall not be made. The authorities cited by appellant support this proposition. In the Amicable Mutual Life Insurance Company v. Sedgwick, 110 Mass., 163, plaintiff appointed Sedgwick its agent, and agreed that his commissions should be twenty-five per cent of the first premiums, and five per cent of renewals, and guaranteed that his commissions should not be less than $166.66 per month. The defendants, knowing of these terms, executed a bond with the agent conditioned that he should faithfully conform to the instructions of the company, and pay over all moneys received by him. Afterward,, without the consent or knowledge of defendants, the company and the agent entered into a new arrangement, whereby the guaranty as to the minimum of the agent’s commissions was abandoned, and instead it was agreed that he should receive thirty per cent of first premiums. Defendants pleaded that this change discharged them as sureties on the agent’s bond. The court holds otherwise, and approves and adopts the language used by the court in the similar case of Frank v. Edwards, 8 Exch., 214: “If tho sureties had thought that the amount of the salary was an essential ingredient of the contract, they ought to have taken care to have had a stipulation inserted in the condition of the bond, that they would be liable only so long as the overseer was continued at the same salary.” See also, Sanderson v. Aston, 8 Law Rep., Exch., 73.

2 _._., eviciencc. It is claimed, however, that it ivas agreed between the plaintiff and Wright that the liability of the latter should be measured by an agreement made eotemporaneously with the execution of the bond between plaintiff and Webster. We have, already seen that the bond and the agreement have no necessary relation to or dependence upon each other. Each, in itself, constitutes a distinct and complete agreement; neither, in any manner, refers to tho other. If any relation exists between them, it must be established by parol testimony. This is what the defendant claims the right, and asks that he may be permitted to do; he claims that he may show by parol, for it does not appear in any other manner, that the contract between plaintiff and Webster enters into and measures the extent of his contract with plaintiff; in other words, that he did not agree that Webster should perform the conditions named in the bond, but simply that he should perform certain other conditions mentioned in a separate contract. It is clear that if this is permitted a contract will be substituted for the bond in many essential respects different from what the bond upon its face imports. This certainly would violate the rule that “parol contemporaneous evidence is inadmissible to contradict or vary the terms of a valid written instrument.” True, tho contract which it is sought to inject into the bond is in writing, but tho fact that it was intended to constitute a part of the bond, if it .appears at all, can appear only by parol testimony. ¥e feel satisfied that the bond can not be so modified or varied. If the surety deemed a continuation of the terms of the agreement between plaintiff' and Webster material, he should have stipulated for such continuation in the bond.

This case differs from Davis Sewing Machine Company v. McGinnis et al., 15 Iowa, 538. In that case the sureties, upon the back of the contract entered into between McGinnis and the Sewing Machine Company, guaranteed the performance of that contract. No question was made as to the terms of the sureties’ contract.

The demurrer should have been sustained.

Reversed.