427. The fourth section of the act of March 3, 1865, was passed to allow the parties, where, a jury being waived, the cause was tried by the court, a review of such rulings of the court in the progress of the trial as were excepted to at the time, and duly presented by bill of exceptions, and also a review of the judgment of the court upon the question whether the facts specially found by the court were sufficient to support its judgment. In other respects the old law remained unchanged. In the present case the bill of exceptions presents no ruling of the court made in the progress of the trial, and there is no special finding of facts. The general finding is conclusive of the issues of fact against the plaintiff in error, and there is no question of law presented by the record of which the court can take cognizance. It follows that the judgment of the circuit court must be affirmed, and it is so ordered. (112 U. S. 676) TOWN OF Sheldon v. Day. SAME V. FAIRBANKS. (January 5, 1885.) These cases, both in error to the circuit court of the United States for the Northern district of Illinois, are, in all respects, similar to the case just decided, (Town of Martinton v. Fairbanks, ante, 321.) The judgments in these cases must therefore be affirmed; and it is so ordered. (112 U. S. 688) MURPHY, Adm'x, etc., v. VICTOR SEWING-MACHINE Co.1 (January 5, 1885.) PRINCIPAL AND SURETY-ACTION ON BOND-NOTICE OF Default. A bond by a principal and a surety was conditioned that the principal should pay to V. all indebtedness existing or to exist from the principal to V. under existing or future contracts between him and V., and waived notice of non-payment on all notes executed, indorsed, or guarantied by the principal to V. In a suit on the bond against the obligors, to recover the amount of notes executed by the principal to V., and other notes indorsed and guarantied by him to V., held, that it was not necessary to allege or show any notice to the surety of a default by the principal in paying V. Appeal from the Supreme Court of the Territory of Utah. John R. McBride and J. G. Sutherland, for appellant. Chas. W. Bennett, for appellee. BLATCHFORD, J. This suit was brought in the district court of the Third judicial district of the territory of Utah, on the first of October, 1879, by the Victor Sewing-Machine Company, against two persons named Crock well and Bassett and one named Murphy. On the eleventh of March, 1876, the company, of one part, and Crockwell & Bassett, copartners by that name, of the other, entered into a written agreement, whereby (1) the former appointed the latter exclusive agents for the sale of the Victor sewing-machine for certain counties in Utah territory; (2) the former to deliver the machines, free of charge, at Chicago; (3) the former to sell the machines to the latter at 50 per cent. discount from retail list of prices, and parts and attachments at regular agents' prices; (4) settlement to be made by note at 12 months from first of month following date of invoice, payable to the former, or its order, at bank in Salt Lake City, with 6 per cent. interest, or, in lieu, the latter may indorse and assign to the former promissory notes, drawing interest, given to the latter, not payable longer than 12 months from the time they are received by the former. On the same day the three defendants executed a joint and several bond, under seal, to the plaintiff, in the penalty of $2,000, with a condition, of which all that is material to this case was as follows: "The 1 See 1 Pac. Rep. 470. 689 069. condition of this obligation is such, that if the above-bounden Crockwell & Bassett shall well and truly pay, or cause to be paid, unto the said Victor Sewing-Machine Company, any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred, on the part of the said Crock well & Bassett to the said Victor Sewing-Machine Company, whether such indebtedness or liability shall exist in the shape of book-accounts, notes, guarantied leases, renewals or extensions of notes, accounts, or guarantied leases, acceptances, indorsements, or otherwise, or whether such liability shall arise from the consignment of machines or other property to the said Crockwell & Bassett by the said Victor Sewing-Machine Company, under any existing contract, or any contract which shall be hereafter entered into in writing by and between the said Crockwell & Bassett and the said Victor Sewing-Machine Company, hereby waiving presentment for payment, notice of non-payment, protest, or notice of protest, and diligence, upon all notes or leases now or hereafter executed, indorsed, transferred, guarantied, or assigned by the said Crockwell & Bassett to the Victor Sewing-Machine Company, then this obligation to be void; but otherwise to be in full force and effect." This suit is brought to recover the amount of the penalty of the bond. The complaint sets forth in hæc verba the agreement and the bond, and avers that between the eleventh of March, 1876, and the first of January, 1877, the plaintiff, in pursuance of the agreement and at the request of Crockwell & Bassett, sold and delivered to them Victor sewing-machines, of the value of more than $5,000; that the defendants have broken the conditions of the bond, in that Crockwell & Bassett, in part payment for such machines, made and delivered to the plaintiff their four promissory notes,-one for $423.50, dated April 1, 1876, at 12 months, with interest; one for $1,216.75, dated May 2, 1876, at 12 months, with interest; one for $49.50, dated September 9, 1876, at 9 months, with interest; and one for $369.47, dated September 1, 1876, at 12 months, with interest, all providing for 10 per cent. interest per annum after due until paid, and 10 per cent. attorney's fees, if collected by an attorney; that Crockwell & Bassett, between the dates first named, resold to purchasers some of the machines, and took the notes of the purchasers therefor, and, in part payment to the plaintiff, indorsed and guarantied the payment of said notes, and delivered them to the plaintiff, their principal amounting to $1,012; that Exhibit B to the complaint contains a statement of the date of each note, the date when due, the name of the maker, and the amount; and that there is due to the plaintiff on all of said notes over $4,200, for principal, interest, and attorney's fees, less a credit of $1,226.31. Murphy answered, denying specifically the breaches alleged, setting up payment of the notes by Crockwell & Bassett, and averring that the contract and bond were procured by fraud and misrepresentations on the part of the plaintiff, made to Crock well & Bassett, and on which they relied, which the plaintiff knew to be untrue, and which are set forth; and that the defendants were induced to execute the bond by false and fraudulent representations of the plaintiff, in this, that the plaintiff represented to the defendants that it was well acquainted with the business of Crock well & Bassett; that they were in good credit, and were good business men, and had promptly met their obligations, and would make money out of the proposed contract with the plaintiff, whereas the plaintiff knew that they were then in failing circumstances, and were not able to pay their debts, and were not good business men, and were at that time indebted to the plaintiff, and had not met their obligations, and that they would lose money on the proposed contract with the plaintiff; and that the defendants signed the bond solely on the faith and credit which they gave to those representations. Crockwell & Bassett also answered. The cause was referred to a referee to "hear, determine, and report a judgment." He reported findings of fact and conclusions of law. He found the *691 facts to be as alleged in the complaint, and that there was due, at the com mencement of the suit, from Crockwell & Bassett, to the plaintiff, in respect of the matters set forth in the complaint, over $2,000, exclusive of offsets and attorney's fees; and that the execution, neither of the agreement nor of the bond, was procured by any false or fraudulent representations made to Crockwell & Bassett, or either of them, by the plaintiff. The report then proceeded: "I find the defendant Edmund H. Murphy did not execute said bond on or relying upon the representations set forth in the last defense of the answer of the sureties, and that the material part of said alleged representations was not made; that he inquired of George Wilkinson, plaintiff's agent in negotiating said agreement and bond, the object thereof and the condition of the business, and said Wilkinson informed said Murphy that the plaintiff proposed to give Crockwell & Bassett a new contract, and larger commissions, and an opportunity to make more money; that, so far as they had acted, it was to the satisfaction of the plaintiff. I find that the business of Crock well & Bassett did then appear to be in a good condition, and they had thus far acted to the satisfaction of the plaintiff; that said Wilkinson made no settlement of the business with Crockwell & Bassett, but they had then given and turned over guarantied notes to the plaintiff to the full amount of their indebtedness; that said notes were not due, and their indebtedness to the plaintiff on cash account very small; that they held in their hands notes and leases taken on sales of machines, far in excess of their liabilities, and, had said notes and leases, and the notes guarantied and delivered to plaintiff, been good and collectible, the contrary of which was not then known to the plaintiff or its agent, the business of Crockwell & Bassett would have been in good condition; that the said George Wilkinson, in November, 1876, had no authority from the plaintiff except to take the business out of the hands of Crockwell & Bassett and turn it over to another party. He did not have in his possession said agreement or bond, or the notes mentioned in the complaint, or a exercise or claim to exercise any authority, real or apparent, in regard thereto." * 692 The referee found the following conclusions of law:*"(1) That there was due from the defendants Crockwell & Bassett to the plaintiff, at the time of the commencement of the action, on account of the matters stated in the complaint, more than the sum of two thousand dollars, the non-payment of which constituted breaches of the said bond. (2) That the execution of said bond was not procured by fraud, and the plaintiff is not barred or estopped from enforcing the same, nor are the sureties thereon, or any of them, discharged by reason of any matters occurring subsequent to the execution of the bond. (3) The plaintiff is entitled to judgment against all the defendants, for the sum of two thousand dollars, and interest at ten per cent. per annum, from the commencement of the action, to-wit, the first day of October, 1879, and costs of suit, to be taxed." Murphy filed exceptions to the findings of fact and the conclusions of law. Judgment was entered for $2,550, and costs. Murphy appealed to the supreme court of the territory, which affirmed the judgment, and, he having afterwards died, his administratrix appealed to this court. It is alleged as error that the complaint is insufficient in not alleging notice to Murphy of the default of Crockwell & Bassett; and that no notice is shown. There is no force in this objection. The condition of the bond is absolute that Crockwell & Bassett shall pay all indebtedness, the obligors waiving notice of non-payment on all notes executed, indorsed, or guarantied. As Murphy did not make or indorse the notes, his waiver could only apply to a default by Crockwell & Bassett. As to the defenses of fraud and misrepresentation set up in the answer, they are negatived by the findings. The judgment is affirmed. See Streeper v. Victor S. M. Co., post, 327. (112 U. S. 676) STREEPER and another, Adm'x, etc., v. VICTOR SEWING-MACHINE CO.1 (January 5, 1885.) 1. PRINCIPAL AND AGENT-SALE OF SEWING-MACHINES AND ATTACHMENTS-PLEADING. A written agreement between a company making sewing-machines and a consignee to receive and sell them on commission, provided that the commission should be calculated on the retail prices for which the machines should be sold, as reported by the consignee, and that attachments should be sold to the consignee at the lowest wholesale rates. The proceeds of sales of machines, beyond the commission, belonged to the company. In a suit by it against the consignee, and a person liable with him on a bond for his indebtedness, to recover such proceeds, and the sale price of attachments, the complaint set forth schedules showing the retail price of each machine sold as so reported, and the excess of money, beyond commission, retained by the consignee, and the price of each attachment sold to the consignee. Held, that the complaint was sufficient. 2. SAME-BOND OF AGENT-LIABILITY OF SURETY-STATUTE OF LIMITATIONS. The consignee and another person united in a bond to the company, conditioned that the former should pay to it all moneys which should become due under or arise from the written agreement, and waiving notice of non-payment. Held, that the liability of the surety arose on the bond, and that of the consignee on the bond or the written agreement, and that the statute of limitations in regard to writteL instruments governed the case. 3. SAME-CONDITION OF BOND. The condition of the bond extended to the payment of notes made or indorsed by the consignee and transferred to the company. 4. SAME-WAIVER OF NOTICE ON SURETY. So far as the surety was concerned his waiver of notice applied to a default by the consignee. Appeal from the Supreme Court of the Territory of Utah. John R. McBride and J. G. Sutherland, for appellants. Chas. W. Bennett, for appellee. 229. BLATCHFORD, J. This suit was brought in the district court of the Third judicial district of the territory of Utah, on the thirteenth of June, 1879, by the Victor Sewing-Machine Company, against two persons named Crockwell and Bassett, and two others named Streeper and Murphy. On the twentyeighth of June, 1875, the company, of one part, and Crockwell & Bassett, of the other, entered into a written agreement, whereby the former was: (1) To deliver sewing-machines to the latter, as consignees, at Chicago, on their order. (2) The latter to sell them in Utah territory, and, if possible, for cash; all promissory notes taken to be guarantied by the latter and delivered to the former; indorsement of the notes by the latter before such delivery to be such guaranty; all notes taken to be payable to the order of the former, not more than 12 months from date of sale. (3) The latter to sell all consigned machines and remit for them within four months from date of shipment; on failure to sell and remit, the former, after the four months, to be at liberty to charge the latter with all machines consigned four months, and not settled 00 for, at their retail price, less 40 per cent., and such amounts to be immediately due on demand. (4) The latter to report every week machines on hand, and those sold, with terms of sale, and remit the proceeds of sale. (5) On report, and remittance, and approval, the former to credit the latter as follows: On a cash remittance of one-half of the retail price of machines sold, 50 per cent. of their retail price; on sales for notes running not more than six months from sale, 45 per cent. of such retail price; on sales for notes running more than six and not more than nine months from sale, 40 per cent. of such retail price; on sales for notes running more than nine and not more than twelve months from sale, 35 per cent. of such retail price; the latter io be charged with the difference between the amounts remitted and the retail prices reported, and to remit such an amount as will equal the retail price of 1 S. C. 1 Pac. Rep. 470. *680 ⚫679 the machine reported sold, (less said commissions,) with 5 per cent. of the re tail price of machines sold for notes, such 5 per cent. to remain with the former till the termination of the contract, and the payment of all notes taken under it, and, after deducting therefrom the cost of collecting the notes, and expenses of settling the contract, the former to pay to the latter such part of the 5 per cent. as should be due to them. (6) The former to sell parts of their machines at 40 per cent. discount from list prices, and attachments at the lowest wholesale rates, both to be settled for with cash every 30 days, unless time should be agreed for, when 20 per cent. should be added to regular cash prices. (7) The former to be at liberty to terminate the contract, and retake their property at any time, charging the latter for loss of or damage to machines; the latter to have the right to take the machines at the retail price, as if new, less 40 per cent.; the latter to be sole agents for certain counties in Utah while satisfactorily performing the contract. (8) The latter to pay a monthly rent for each wagon furnished by the former; the former to have the right to make, on notice, certain variations in the time of the notes; the latter to be at liberty, for such machines as they shall dispose of during each month, otherwise than for cash or note, to give their personal notes, on an average of six months' time, at the retail price of the inachines, less 40 per cent., or their personal notes on an average of nine months' time, at the retail price of the machines, less 35 per cent.; the former to have the right to terminate and renew this last provision at their election. On the third of July, 1875, the four defendants executed, on the back of said agreement, a joint and several bond, under seal, to the plaintiff, in the penalty of $3,000, with the following condition: "The condition of this obligation is such, that if the above-bounden George Wallace Crockwell and Charles Henry Bassett, Jr., shall pay unto said Victor Sewing-Machine Company all moneys due, or which shall become due to said Victor Sewing-Machine Company, under or pursuant to the within contract, or which shall arise therefrom, whether by book-accounts, notes, renewals or extensions of notes, or accounts, acceptances, indorsements, or otherwise, hereby waiving presentment for payment, notice of non-payment, protest or notice of protest, and diligence, upon all notes now or hereafter executed, indorsed, transferred, guarantied, assigned, and shall well and truly keep and perform, in all respects, according to its true intent and meaning, the contract or agreement to which this obligation is attached, executed between the said Victor Sewing-Machine Company and G. W. Crockwell and C. H. Bassett, Jr., dated at Salt Lake City, the twenty-eighth day of June, 1875, then this obligation to be void; otherwise, to remain in full force and virtue. But said contract may be varied or modified by the mutual agreement of said Sewing-Machine Company and said G. W. Crockwell and C. H. Bassett, Jr., as to the manner of carrying on said business, or as to the time on which notes taken shall be drawn, or as to the compensation to be paid to said G. W. Crockwell and C. H. Bassett, Jr., or as to the period at which said G. W. Crockwell and C. H. Bassett, Jr., shall report to said company for the machines they may sell, or as to the territory on which said machines shall be shipped or sold, or as to the place from which said machines shall be shipped, and such changes and modifications, or variations, shall in nowise affect or impair our liability on this bond." This suit is brought to recover the amount of the penalty of the bond. The complaint sets forth in hæc verba the agreement and the bond, and alleges that the defendants failed to perform the condition of the bond that Crockwell & Bassett should perform the agreement, in that, (after reciting the provisions of clauses four and five of the agreement,) between July 3, 1875, and February 10, 1876, the plaintiff, at the request of Crockwell & Bassett, consigned to them, under the agreement, divers sewing-machines, which they sold before 1878, but they did not remit the proceeds, or the part to |
