107 F. 395 | 5th Cir. | 1901
delivered the opinion of the court.
This is the third appearance of this case in this court. On the first writ of error the question presented was whether an arrangement between the brewing- association and the principal on the bond by which the brewing association was to furnish beer on credit, operated to release the sureties from liability on the bond, and this court held that such outside arrangement did not operate an entire release of the sureties. See Association v. Hayes, 17 C. C. A. 634, 71 Fed. 110. On the second‘writ of error, the questions passed upon were whether the
“The liability of the sureties did not and could not accrue until the year ended oh October 18, 1891, or Hayes finally stopped buying beer under the contract for year ending November 18, 1894, and it was irrelevant and misleading to the jury to allow evidence as to what the traveling auditor said Hayes owed in April or June, or evidence as to what property Hayes owned in April or June, 1894.”
On the last hearing in this court it was held that the contract of appointment of Hayes and the bond given in pursuance thereof were parts of the same transaction, and must be construed together as one instrument. See Association v. Hayes, 38 C. C. A. 449, 97 Fed. 859. This being the case, if we turn to the contract of appointment, we find that Hayes was to pay cash on receipt of bill of lading, and to keep strict account of all packages, kegs, or half barrels received, as well as empties returned; and by reference to the bond we see that the sureties bond themselves that Hayes should pay or cause to be paid to the association any and all sums of money that may be or become due to said association
As to the matter of the state of Hayes’ account, the inquiries made by the sureties, the representations made by the association and its agents, the authority of the agents to speak for the association, and whether or not the sureties’ condition was worse in June than in October, when suit was finally instituted, are questions all raised by the pleadings, and, under evidence tending to establish the same, were, in a fair, lucid charge by the court, submitted to the jury. It may be that, if the case were now before us upon the same facts, we would find a different verdict, but as the record stands we find no reversible error in the proceedings of the circuit court, and its judgment is affirmed.