254 Pa. 36 | Pa. | 1916
Opinion by
This is an action of assumpsit on a bond, a copy of which appears in the reporter’s notes. The Phoenix Mill Company, the plaintiff, is a Minnesota corporation engaged in the general flour and milling business. In July, 1905, the company’s general agent in the State of New York appointed Kresge, one of the defendants, its local agent for the sale of its goods within certain territory allotted to him in that state. On the twenty-ninth day of that month, Kresge, with the other defendants, the appellants, executed and delivered to the plaintiff the bond in suit conditioned that Kresge should well and faithfully account for and pay to the company the amount of all money due it resulting from the sale of all goods by him to any purchaser, or purchased by him on his own account, or sold upon any orders approved by him, less the amount of his commission, within forty-five days after the date of the bill of lading accompanying the shipment of the goods. Kresge acted as the agent for the plaintiff for the sale of its goods from 1905 until the latter part of 1910 when it appears he was indebted to the company in the sum of over $4,000 for which, on May 1, 1913, the plaintiff took his judgment note. He made no sales in the State of New York, and his operations were confined to the State of Pennsylvania. This suit was brought on the bond in July, 1914, to recover the balance due the plaintiff from Kresge on the sales made by him in this State. On the trial of the cause the court directed a verdict for the plaintiff, and, judgment having been entered thereon, the sureties took this appeal.
The statement filed by the plaintiff sets forth a copy of the bond in suit, and avers that Kresge was appointed
There is no ambiguity in the language of the bond, and there is no averment in the statement filed by the plaintiff of any fraud, accident or mistake in its execution. It is equally clear that the parol testimony was not sufficient to alter, vary, change or reform the contract as shown by the bond. If sufficient for that purpose, the question, as suggested by counsel of both parties,
A bond, like any other contract, must be so construed as to carry out the intention of the parties accepting and
We have not been referred to any decision of this court which rules the case, but our conclusion is sustained by decisions in other jurisdictions. In Bell & Grant v. Bruen, 42 U. S. 169, 183, Mr. Justice Caton, delivering the opinion, says: “The general rule is well settled in controversies arising on the construction of bonds, with conditions for the performance of duties, preceded by recitals; that where the undertaking is general, it shall be restrained, and its obligatory force limited within the recitals......Where a mercantile guarantee is preceded by a recital, definite in its terms, and to which the general words obviously refer, the same rule applies, of limiting the liability within the terms of the recital, in restraint of the general words.” In Bennehan v. Webb, 28 N. C. 57, 59, Nash, J., speaking for the court, says: “The condition of a bond is frequently preceded by a recital of certain explanatory facts, and in such case, if a certain particular thing be referred to, the recital will operate against the parties to the bond, as a conclusive admission of the fact recited; and these recitals will fre
The first, fourth and fifth assignments are sustained, the judgment against the appellants is reversed, and judgment is now entered for the appellants non obstante veredicto.