75 Mo. App. 420 | Mo. Ct. App. | 1898
In 1891 the plaintiff employed the defendant Repass as a traveling salesman. To secure plaintiff in the contract Repass executed the following bond or obligation with the defendant D. B. Haeberle and one W. L. Earp as sureties:
“Know all men by these presents, that D. A. Repass and D. B. Haeberle and W. L. Earp, sureties of the - of - county of- and state of-are held and firmly bound to Donnell Manufacturing Company (a corporation), of the city of St. Louis, county of--and state of Missouri, in the sum of one thousand dollars, to be paid to said Donnell Mfg. Co., their executors, administrators or assigns, to the payment whereof we bind ourselves, our heirs, executors and administrators, firmly by these presents. Sealed with our seals and dated the 15th day of June, A. D. 1891.
bond. “The condition of this obligation is, that D. A. Repass agrees to travel and sell goods and make collections for the Donnell Mfg. Co., and that he will take good care of the samples, team and wagon, and any other*423 property received by him for the account of the Donnell Mfg. Co., and that he will return and deliver to the Donnell Mfg. Co., at St. Louis, Mo., the same in like good order and condition (unavoidable accidents excepted) at any time when called upon to do so; and further that he will promptly, correctly and faithfully report, deliver and pay over to the Donnell Mfg. Co. any and all goods, money or other property received by him from the Donnell Mfg. Co., or on the account of the Donnell Mfg. Co. All these conditions being carried out promptly and correctly, then this obligation shall be void; otherwise it shall remain in full force and effect. Signed, sealed and delivered in presence of J. S. Pierson, John K. Wilkins, witness.
“D. A. Repass (Seal)
“D. B. Haeberle (Seal)
“W. L. Earp (Seal)”
In the spring of 1892, Repass agreed to continue in the service of plaintiff for another year, commencing on the eighth day of April, 1892. , The terms of this agreement are to be found in the correspondence between the parties. It was understood that Repass should furnish the same or other sureties. On the eighth day of April, 1892, the agent of the plaintiff went to the city of Springfield, where Repass lived, for the purpose of arranging for the new security. At the solicitation of Repass the defendant Haeberle and Isaac Ferguson agreed to become responsible for Repass under the new contract. Instead of writing a new bond the following was indorsed on the old bond, to wit: “I hereby agree to renew bond for coming year of 1892 in favor of D. A. Repass, April 8th.
“(Signed) D. B. Haeberle.
“Isaac 4- Ferguson”
The conclusion reached in the foregoing paragraph disposes of the main argument in support of the judgment in favor of Haeberle and Eerguson — that is that Repass the principal did not sign the new agreement. He did sign, as we have attempted to show, which makes a discussion of this phase of the case unnecessary.
The defenses of Ferguson, as we have shown, were that his signature had been obtained by fraud, and that Repass did not sign the new obligation. The circuit court, however, in disposing of the case based its judgment on the additional ground that Earp did not sign the new obligation as a co-surety. We are of the opinion that there is no merit in this, for the reason that the second a greement was in fact an independent agreement, and there is nothing in it to indicate that Earp was to sign it.- And even if there was, the contract would be absolutely binding on Repass and prima facie binding on Haeberle and Ferguson.
With the concurrence of the other • judges the judgment of the circuit court will be reversed and the cause remanded.