Miller & Gavin and J. S. Scobey, for appellees. MITCHELL, J. The complaint in this case charges that on the twentyseventh day of October, 1874, William H. Forsythe, Columbus C. Burns, and Elias R. Forsythe executed a joint and several bond to the Singer Manufacturing Company, conditioned that William H. Forsythe should pay, or cause to be paid, any and every indebtedness or liability then existing, or which might thereafter in any manner exist or be incurred, on the part of William H. Forsythe, to the Singer Manufacturing Company, whether such liability should exist in the shape of book-accounts, notes, renewals, or extensions of notes, or accounts, acceptances, indorsements, or otherwise. A copy of the bond was filed with, and made part of, the complaint. The conditions of the bond are substantially as they are recited in the complaint. It was averred that thereafter, in the year 1877, on the faith of the bond, and in pursuance of its provisions, William H. Forsythe, for a valuable consideration, executed his four promissory notes, for amounts stated, to the Singer Manufacturing Company. Copies of the notes are set out. They are all payable at a bank in this state. The complaint also charges that, pursuant to the above-mentioned bond, William H. Forsythe transferred and delivered to the obligee in the bond a certain note, against one James H. Kersey, and that he (Forsythe) guarantied the payment of the same to the plaintiff. It avers that the note so transferred and guarantied is not collectible. It is alleged that all the notes are due and unpaid. Judgment is demanded as for a breach of the condition of the bond. on. Neither the complaint, nor the bond, on its face, discloses, unless by implication, any consideration whatever, for the execution of the obligation sued It does not appear, either by averment in the complaint, or recital in the bond, that William H. Forsythe was indebted to the Singer Manufacturing Company at the time the bond was executed, or that there was any business transaction of any kind had, or under contemplation, between him and the company at the time the bond was delivered. So far nothing appears except that in 1874 the obligors signed and delivered the bond in suit to the Singer Manufacturing Company, and that three years thereafter the notes described in the complaint were received on the faith of the bond, for a valuable consideration moving to the maker and guarantor of the notes. No question is made as to the sufficiency of the complaint, and we express no opinion on that subject. Answers were filed in which substantially the following facts are made to appear, viz.: That the sole and only consideration for the execution of the bond declared on was that, concurrently with its execution, the Singer Manufacturing Company, by a written agreement, constituted William H. Forsythe its agent for the sale of its sewing-machines in the county of Decatur, in the state of Indiana; the company agreeing to furnish him for sale, and to be leased, machines and accessories, at a discount of 35 per cent. from its regular list price. The contract stipulated that the agent should account monthly for all machines sold or leased by him, either with cash, or the note of the purchaser, or by giving his own promissory note, and, at the termination of the agency, return to the company all machines remaining unsold. The answer alleges that this contract of agency continued until the fifteenth day of May, 1875, when it was superseded by a new contract, and that this new contract was superseded by a third, on the third day of October, 1876, which was followed by a fourth, dated May 13, 1877; that finally, on the fourth day of October, 1877, the agency was terminated, and a full and final settlement had between the company and its agent. This settlement, according to the answer, resulted in an absolute sale by the company to William H. Forsythe of all the machines then unsold in the possession of the latter, and which had been consigned to him under the previous contracts of agency. The answer further avers that all of the foregoing contracts, except that executed contemporaneously with the bond in suit, were made without the knowledge or consent of the defendant, and that the notes sued on were executed in consideration of, and in payment for, the property purchased by William H. Forsythe from the company on the fourth day of October, 1877, when the previous contracts were annulled and canceled. There were also answers alleging that the bond had been executed without consideration. Demurrers were overruled to all the answers which presented as a defense the facts above set out. Upon issues made, a trial was had, which resulted in a finding and judgment for the defendants below. It is contended here that the demurrers to the answers above summarized should have been sustained, and that the court should have granted a new trial, because the finding was not sustained by any competent evidence. The position which the appellant's learned counsel seeks to maintain is that since the bond, in terms, covers every indebtedness of William H. Forsythe, whether existing at the time the bond was executed, or which might thereafter exist, or be in any manner incurred, it was not competent to aver, and prove by parol, that the sole consideration of the bond was the contract of agency, which was executed concurrently with it, and that it was error to confine the obligation of the bond to indebtedness arising under and embraced by such contract. The argument is that to permit the bond to be so restrained, is in violation of the elementary principle which forbids that a plain and unaınbiguous contract should be varied, contradicted, or added to by parol. The rule that a formal written contract, which appears to be complete, will be presumed to be the repository of the final intentions of the parties, in regard to the subject-matter of the agreement, and that it excludes proof of any prior or contemporaneous parol stipulations which would contradict the writing, is abundantly settled, and should not, on account of its importance, be relaxed in any degree. "It would be inconvenient," says Lord COKE, "that matters in writing, made by advice and on consideration, and which finally import the certain truth of the agreement between the parties, should be controlled by an averment of the parties, to be proved by the uncertain testimony of slippery memory; and it would be dangerous to purchasers and farmers, and all others, in such case, if such nude averments against matter in writing should be admitted." Rutland's Case, 5 Coke, 26. Obligations which parties have deliberately entered into, and put in writing, cannot, therefore, be pared down, taken away, or enlarged by parol evidence. The rule, however, has no application to a case in which it appears from the writing itself that it does not contain the whole agreement between the parties, nor does it operate to exclude proof of collateral or superadded agreements, provided the agreements so sought to be proved be not inconsistent with the writing. In such cases parol evidence of the collateral matter is admissible to the extent that it does not specifically add to or contradict, or where it is necessary to complete the original contract. Trentman v. Fletcher, 100 Ind. 105, and cases cited; Chapin v. Dobson, 78 N. Y. 74; Eighmie v. Taylor, 98 N. Y. 288; Jones, Com. Cont. 188-198. This doctrine, carried, perhaps, on the facts of that case, to its utmost limit, was applied in Welz v. Rhodius, 87 Ind. 1, where the authorities illustrating the rule are collected. The inquiry, therefore, of primary importance in the present case, is, does the written instrument which is put forward as the foundation of the action appear to be complete in itself? or does not the suggestion necessarily arise out of the very terms of the writing that it is collateral to, and dependent upon, some engagement, either oral or written, between the obligee and principal obligor named in the bond? The rule is abundantly settled that where a collateral agreement, whether oral or written, constitutes a condition upon which the performance of a written contract depends, or where a contemporaneous agreement of one party forms the consideration for the written agree ment in question, such collateral or contemporaneous agreement may be shown. Steph. Dig. Ev. art. 90; Tayl. Ev. § 1038; Shughart v. Moore, 78 Pa. St. 469; Wilson v. Deen, 74 N. Y. 531. Looking at the bond, it becomes at once apparent that it is a special contract or promise on the part of the guarantors to answer for the debt, default, or miscarriage of William H. Forsythe. Such a contract must be in writing, and but for section 4905, Rev. St. 1881, which provides that "the consideration of any such promise, contract, or agreement need not be set forth in such writing, but may be proved," the bond under examination, considered by itself, would be void, as being an agreement partly in writing and partly in parol. Gordon v. Gordon, 96 Ind. 134, and cases cited; Higham v. Harris, 8 N. E. Rep. 255, (present term;) Hiatt v. Hiatt, 28 Ind. 53; Wilson S. M. Co. v. Schnell, 20 Minn. 40, (Gil. 33;) Simons v. Steele, 36 N. H. 73; Jones v. Post, 6 Cal. 102. That the necessity for setting forth the consideration in the writing is thus dispensed with does not, however, avoid the necessity of proving the consideration upon which a contract of guaranty or suretyship was made. Much less does the statute, or any rule of law, deprive a surety, or guarantor, of the right to aver and prove such consideration, or that it was made without any consideration. "There must be a sufficient consideration for the promise to pay the debt of another, as well as for any other promise; otherwise it will not be binding, though reduced into writing. A guaranty must have a consideration to support it. If it is made at the time of the contract to which it relates, so as to constitute a part of the consideration of that contract, it is sufficient." Wood, Frauds, § 102; Brandt, Sur. §§ 6, 72, 73; Langford v. Freeman, 60 Ind. 46; Bridges v. Blake, 106 Ind. 332; S. C. 6 N. E. Rep. 833. Whatever we might have felt constrained to hold in respect to the failure of the appellant to aver and prove that the bond was executed upon an adequate consideration, we can have no doubt that it was competent for the defendants below to aver and prove the original transaction and agreement between the Singer Manufacturing Company and William H. Forsythe. That agreement furnished the sole consideration upon which the collateral engagement of the appellants was entered into. Parol proof of this was admissible upon two grounds: First, because the bond sued on, failing to state any consideration, was incomplete on its face; second, the irresistible implication arising upon the face of the bond indicated that it was collateral to some other contract, which must be ascertained in order to determine the subject-matter to which it should be applied, and the consideration upon which it was made. The bond and the contract of agency, having been executed contemporaneously, are to be read together. They are necessarily related to, and, so far as respects the bond, dependent upon, each other. The extent of the engagement of the guarantors is to be measured by the terms of the contract which they signed, considered in reference to the nature of the transaction under contemplation at the time, and the agreement entered into by the principal for the due execution of which they agreed to answer. Weed S. M. Co. v. Winchell, 107 Ind. 260, and cases cited; S. C. 7 N. E. Rep. 881; Burns v. Singer Manuf'g Co., 87 Ind. 541; Grocers' Bank v. Kingman, 16 Gray, 473. The several liabilities which they engaged that their principal should "well and truly pay" must be confined to such liabilities as might arise under the contract which was executed concurrently with the bond, and without which the bond would, in itself, be meaningless, and unsupported by any consideration whatever. This in no wise contradicts or varies the terms of the bond, but applies it to a subject-matter, and makes it intelligible, which otherwise it would not be. It results that when the appellant terminated its contract of agency with William H. Forsythe, and, instead of receiving back its unsold property, made an absolute sale of machines to him, taking his notes therefor, it engaged in a transaction which was in no manner contemplated by, nor embraced within, the contract, the performance of which the bond was given to secure. Such a transaction was as much outside of the purview and consideration of the contract guarantied as if the company had sold land or loaned money to its agent. The bondsmen never engaged to answer for such a transaction. us. The appellants rely on Singer Manuf'g Co. v. Hester, 2 McCrary, 417, S. C. 6 Fed. Rep. 804, and Domestic S. M. Co. v. Webster, 47 Iowa, 357. These cases are, to some extent, distinguishable in their facts from the case before To the extent that they hold that the bond, and the contract of agency executed concurrently therewith, have no relation to or dependence upon each other, and are not to be construed together, we are constrained to the view that they are not in accord with the adjudications of this court, nor are they, in our opinion, in harmony with the weight of authority on that subject. This will appear from an examination of the authorities already cited. There was competent evidence to sustain the finding. The judgment is affirmed, with costs. (108 Ind. 401) PIPHER and others v. JOHNSON and others. (Supreme Court of Indiana. December 9, 1886.) REPLEVIN-BOND-ACTION ON-WHO MAY MAINTAIN-STRANGER. Where goods have been taken possession of by the plaintiffs in a replevin suit, and an ordinary replevin bond has been executed by them and their sureties to the plaintiffs, a stranger, who is neither a party to the suit nor to the bond, cannot maintain an action thereon against the obligors. Appeal from circuit court, Daviess county. ZOLLARS, J. On the same day, in November, 1880, N. B. Shaw and John Abels recovered separate judgments, aggregating about $600, against the Nelson Iron & Coal Company. On the eighteenth day of that month executions were issued upon those judgments, and the sheriff levied them upon, and took into his possession, personal property, of the value of about $5,000, as the property of the iron and coal company. Shortly thereafter, claiming the property as theirs, the appellees herein, Fordyce, Johnson, and Plummer, as plaintiffs, replevied the property from the sheriff, Pipher, making defendants to the action with him the judgment creditors, Shaw and Abels, and got possession of the property by executing a replevin bond, which, after setting out the title of the cause, with the names of the plaintiffs and defendants in full was as follows: "We undertake that the plaintiffs in the above-entitled action shall prosecute said action with effect and without delay, and return the property in controversy to the defendants herein if return be adjudged by the court, and pay to said defendants all such sums of money as they may recover against the plaintiffs in this action for any cause whatever." This bond was signed by the plaintiffs in the action, and by appellee Frank Baker, who was surety for the other obligors. While the replevin suit was pending, and while the property was thus in the possession of Fordyce, Johnson, and Plummer, appellants herein, Frick, Ferguson, & Ferguson recovered a judgment against the iron and coal company in the sum of $2,070. In January, 1881, an execution was issued upon that judgment, and by the sheriff levied upon the said personal property still in possession of Fordyce, Johnson, and Plum. mer. Upon an appeal to this court it was held that the levy of the executions in favor of Shaw and Abels, and the taking possession of the property by the sheriff, brought it within the custody of the law; that the possession of Fordyce, Johnson, and Plummer, secured to them by the undertaking given in the replevin proceedings, was, in legal contemplation, that of the law; and that, being thus in custodia legis, the property could not be seized under the execution upon the judgment in favor of appellants. Pipher v. Fordyce, 88 Ind. 436. While the replevin suit was pending, and before its determination, and while the execution upon appellants' judgment was in the hands of the sheriff, Fordyce, Johnson, and Plummer shipped the property out of the state, sold it, and realized therefrom $5,000. Afterwards, Fordyce purchased from Shaw and Abels their judgments against the coal and iron company, as alleged in appellants' complaint herein, to prevent a trial of the replevin suit, and, at the time of making the purchase, he (Shaw) and Abels agreed that judgment should be rendered in that suit in favor of the plaintiffs therein at their costs, reserving to the sheriff and appellants all rights that they, or either of them, might have by virtue of appellants' judgment, the execution thereon, or under the bond in the replevin suit, or by reason of the sale of the property by Fordyce, Johnson, and Plummer. Upon that agreement, judgment was accordingly rendered. During all this time the coal and iron company has had no other property out of which appellants could make any part of their judgment. In this action, appellants seek to avail themselves of the bond executed in the replevin suit, and to recover thereon against Fordyce, Johnson, and Plummer, and their surety, Baker, the amount of their judgment against the coal and iron company. The fóregoing is substantially the statement of facts as contained in appellants' complaint. It is further alleged therein that the property in question belonged to the coal and iron company, and not to appellées, Fordyce, Johnson, and Plummer. It will be noticed that there are three conditions in the replevin bond: (1) To prosecute the suit with effect, and without delay; (2) to return the property to the defendants in the action upon a judgment of return by the court; (3) to pay to the defendants in the action such sums of money as they might recover against the plaintiffs in the action. For the performance of these conditions, and none other, the principals in the bond, and their surety, bound themselves by the undertaking. It is clear that the defendants in the replevin suit, who were the obligees in the bond, could not have maintained an action on the bond, either for the value of the property or for damages, because no condition of the bond was broken by the obligors. They are not in fault for not having returned the property, because there was no judgment for its return. They are not in fault for not having paid to the obligees any sum of money, because there was no judgment against them except for costs; and, for aught that appears, they are paid. They are not in fault for not having prosecuted the action, because, by the agreement of all parties to the action, it was settled, and judgment rendered in their favor. Gerard v. Dill, 96 Ind. 101; Thomas v. Irwin, 90 Ind. 557; Foster v. Bringham, 99 Ind. 505. We know of no principle of law that will enable appellants, who were not parties to the replevin suit, and hence not obligees in the bond, to recover upon that bond. The undertaking was to and with the plaintiffs in the replevin suit, and to and with no one else. To hold the principals in the bond liable thereon to appellants would be to hold them liable to a party upon a contract, with whom they had no contract. This certainly cannot be done. And still less can the surety be held beyond the terms of his undertaking. If appellants have been in any way wronged by the acts of Fordyce, Johnson, and Plummer, and have any remedy, clearly that remedy is not upon the bond, with which they had no connection. Indeed, at the time the bond was executed, they had no judgment, and, of course, no execution. Whether, notwithstanding the fact that appellants could not take the property upon their execution, it was yet a lien upon it, subject to the lien of the prior execution, is a question we need not now decide. Whether it was or not, it may be that appellants could have protected themselves by having the property put into |