Northern Assurance Co. v. Hotchkiss

90 Wis. 415 | Wis. | 1895

Cassoday, J.

By the express terms of the bond, Thomas, as principal, and HoteKkiss and Ellis, as sureties, “ are held and firmly bound unto” the plaintiff in the sum named, and “for which payment well and truly to be made” they thereby bound themselves, their “heirs, executors, and administrators, jointly and severally.” The obligation is not to guaranty collection, but for each and all together to pay in case of breach. This being so, and the breach of the bond by Thomas receiving the $321.13 as such agent, and then refusing to pay it over on the termination of such agency, having been alleged, there can be no question as to the plaintiff’s right to recover the amount in this action against the principal and his sureties. The same is true in respect to the item of $70 received by Thomas as such agent, and which he refused to pay over. That does not constitute a separate cause of action, but is merely another item in the same cause of action. In an action for the breach of a bond it is unnecessary for the complaint to allege that it was executed upon a consideration. The seal sufficiently imports consideration. The demurrers were without merit, and might well have been stricken out as frivolous.

The motion to strike out the respondent’s brief, on the ground that it contains language disrespectful to counsel, is denied. The language complained of is too inconsequential to call for comment.

By the Gourt.— The two orders of the circuit court are both affirmed.