117 Ga. 181 | Ga. | 1903
The F. W. Cook Brewing Company, an Indiana corporation, brought suit against Scarratt as principal, and Karwisch as security, both of Fulton county, upon a bond in the sum of $2,000, the conditions of which were, "that whereas the said F. W. Cook Brewing Company has made arrangements with the said John B. Scarratt to sell their beer: now if the said Scarratt shall well and truly pay to the said F. W. Cook Brewing Company for all beer it may sell him and save the said F. W. Cook Brewing Company harmless on account of any dealings it may have with him in relation to said beer business, then this obligation to be void; otherwise to remain in full force and virtue.” The petition alleged that after the delivery of the bond, the brewing company had sold to Scarratt, between the dates of August 22, 1896, and December 31, 1899, beer to an amount of something more than thirty thousand dollars, upon which they had received payments at various times, but that Scarratt, at the time of bringing this suit, owed the company a balance on his account for beer of $4,220.61; that he failed and refused to pay this balance, although demand had been made upon him; that after Scarratt’s refusal to pay, demand had been made upon Karwisch, as security, for the maximum amount fixed by the bond, but that he also had refused to pay. The petition concludes as follows: “ This suit is brought to recover said sum of two thousand dollars, together with interest thereon from date of breach. Of both said defendants demand has been made, and refusal by both of them to make good their said bond.” Attached to the petition as an exhibit was what purported to be a copy of the account due by Scarratt to the brewing company, setting forth numerous charges and credits, and showing a balance due as alleged in the petition. Scarratt and Karwisch filed separate answers. Karwisch demurred on the grounds, (1) that the petition set forth no cause of action ; (2) that there was a misjoinder of parties, the plaintiff having no right to join the security in the same action with his principal; and (3) that the plaintiff declared in an action of debt, whereas Karwisch, if liable at all, was liable only for damages
The defendant Karwiseh, at the trial, filed an amendment to bis answer, in which he set up that under the agreement made between Scarratt and the brewing company, reference to which was had in the bond, Scarratt was to be furnished beer at $6 per barrel ; that the plaintiff was to furnish Scarratt with cold storage in Atlanta, and was to send an agent to Atlanta every month for the purpose of aiding Scarratt in the advertisement and sale of its beer, and of keeping an oversight on the business for Karwisch’s protection. He further averred, that, as a condition precedent to his signing the bond as security, the plaintiff agreed to keep him informed as to the condition of Scarratt’s account with it, and to give him due advice whenever Scarratt should fail to meet any obligation to it. He set up that not only did the plaintiff fail to give him this information, but that, upon his making inquiries of the plaintiff, its general .agent wilfully, designedly, and fraudulently deceived him, and represented to him that Scarratt’s account was all right, that he was keeping up, etc. He averred, that, had he not been so misled and deceived, he could have fully protected himself, and that by the failure of the plaintiff to keep him informed as to the true state of the account, and by its fraudulent misrepresentations to him, his risk had been increased, and
This bond was only an instrument given to secure compliance ■on Scarratt’s part with an agreement entered into between him and the brewing company, by the terms of which he was to have exclusive control in the city of Atlanta of the plaintiff’s beer, for which he was to pay. Karwisch agreed to secure his compliance with the agreement to pay for the beer, to an amount not exceeding $2,000. In consideration of the agreement between the parties,
We do not undertake to pass upon the question whether the verdict was supported by the evidence. Upon the next trial the various contentions of the parties will be decided by another jury, who will say what the truth of the case is. If Scarratt is indebted to the brewing company under the agreement between the parties, the plaintiff will be entitled to a verdict against him in this suit to the amount of that indebtedness up to $2,000. If, on the other hand, he can show that by reason of the failure of the plaintiff to comply with the terms of the agreement by which it was bound, he is not indebted to it in any sum, there can be no recovery against either him or Karwisch. Again, the jury may find that Scarratt is indebted to the brewing company, but that on account of its failure to carry out its obligation to exercise an oversight over the business, the risk assumed by Karwisch was increased after the bond was signed, or that owing to its fraudulent' misrepresentations to