Hayden v. Hill

52 Vt. 259 | Vt. | 1880

The opinion of the court was delivered by

Redfield, J.

This action is upon a bond. The defendants are sureties. The facts are stated in the report of the referee. Charles H. Mitchell took the agency for selling Wheeler & Wilson’s sewing machines at Burlington, and gave this bond in the penal sum of $2,000, conditioned that said Mitchell shall: first, use all diligence and due care in the custody, sale, and leasing of'-all machines, attachments, and other goods entrusted to him, &c.; second, shall return all such property not sold or leased, when requested; third, shall account for and pay over the proceeds of all such property that has been or may be so entrusted to him, that have been or hereafter may be sold, leased, or any way disposed of by him, and shall account for and pay over all funds that may be in his hands or possession belonging to the plaintiff; fourth, shall indemnify and save harmless said company and the plaintiff from any and all loss, cost, damage, trouble, or expense by reason of any neglect or default of said Mitchell to the same or any of the above conditions. The referee finds that the conditions of the bond have been broken ; that there is a balance due the plaintiff of $380.33 ; and that this balance results “ from Mitchell’s neglect to pay the expenses of the agency, or to transmit to the plaintiff the money collected by him for the plaintiff ; and to account for the property of the plaintiff which came into his hands in pursuance of said agreement made by him and Brown [acting for the plaintiff] in the outset.”

I. The report shows that Mitchell took in one Clapp, as a partner, and that said agency was managed and funds therefor received, during a portion of the time, by the partnership ; and it is claimed that a portion of the funds from sales and leases of the property were received by Clapp and never actually came into the hands of Mitchell. .But the report further states that the plaintiff never recognized such partnership, and dealt solely with Mitchell. He refused even to receive a note indorsed by the partnership name. If the plaintiff had seen fit to have consigned the property to the partnership, and dealt with it in such manner that the firm of Mitchell and Clapp would have been the responsible parties in the accounting, these defendants, as sureties for Mitchell in the bond, could not be liable to respond for the laches of the firm; for it would be the default of a different party from that for which they were bound. Mitchell was at liberty to employ such agency as he chose, to assist him. He could pay assistants a stipulated salary, or compensate them with a portion of the profits of the business. It was a matter of indifference to the plaintiff, so long as Mitchell fulfilled all the stipulations of his agreement. -If he employed unfit agencies, and thereby the property was squandered and lost, it was, so far as this plaintiff is concerned, the default of Mitchell alone, and he and his sureties must respond. If the fact that defendant took in a partner in conducting the business of the agency, did enhance the risk of these defendants, as the sureties of Mitchell, it was not induced or recognized by the plaintiff, and. was a matter over which the defendants had quite as much control as the plaintiff. We think that the referee was right, under the circumstances of the case, in finding that Mitchell was “ responsible for the acts of Clapp ” as for any other agent or assistant that he employed, in conducting the business of the agency; and that money that came to the hands of Clapp, in the conduct of this business, by legal intendment, came to the hands of Mitchell. Palmer v. Bagg, 64 Barb. 641. There are cases, and such are many of the cases referred to by the defendants’ counsel, where the surety for one individual, as to his good conduct and fidelity, or where rendering special service, would not be responsible for the act of a partner ; or where the business or service which was the subject of the contract devolved upon a partnership, not by the voluntary act of the party, the surety would not be liable for any act of the partnership. ' But in this case, the principal contracted to do all the business of the agency and account for all the proceeds of the property entrusted to his care. He received the property which he agreed to account for. When called to account, it is no answer in law or equity to say, I have received the proceeds of the sale of such property, and myself and partner have perverted it, and as I took in a partner to aid me in the embezzlement of the plaintiff’s funds, I ask to be excused from accounting. The maxim, quod facit per alium facit per se, which Punch translates with aptness and force, “ quod facit per alium, must face it himself,” must control this part of the case.

II. The agreement between the principal parties was, that plaintiff should advance, on commissions to be earned, to enable Mitchell to support himself while starting the business of the agency ; and he did advance from time to time, according to the agreement, towards his commissions; and now the defendant claims that such advances should be treated as independent loans, and the commissions set off in extinguishment of the other claims for the laches of Mitchell. The advancement towards commissions extinguished the commissions pro tanto ; and it would be at war, not only with the contract, but with every principle of law and justice, to allow the defendants to recover the commissions, after they have paid them in advance.

III. The defendants claim that $71.58, paid by plaintiff for rent and horse-keeping, should not be allowed. The report states that it was a part of the contract that Mitchell should pay the rent and horse-keeping, that these charges accrued during Mitchell’s agency, that he neglected to pay them, that “ plaintiff was bound to pay them, as the lease was in his name, and the account for horse-keeping was charged against him or the Sewing Machine Company, with the knowledge of the plaintiff, Mitchell, and the parties who kept the horse.” The plaintiff having paid these items, and constrained to do so by reason of Mitchell’s neglect to pay them, we think Mitchell was bound by the contract to reimburse the plaintiff, and that the claim is covered by conditions of the bond, which provides that he will “ indemnify and save harmless . . . said agent [the plaintiff] from any and all loss, cost, damage, trouble, or expense, by reason of any neglect or default of said C. H. Mitchell.”

IY. We think the $11.48 collected by Mitchell on old leases, and the $5 received of O’Neil came into Mitchell’s hands in the “ continuation of the business of the agency,” and that the claim is covered by the bond, which provides that Mitchell “ shall well and truly account for and pay over all funds that may be in his hands belonging to the plaintiff, or said Wheeler & Wilson Manufacturing Company.”

Judgment affirmed.