Singer Manuf'g Co. v. Hester

6 F. 804

• Court: U.S. Circuit Court for the District of Western Missouri
• Decided: July 1, 1881
• Status: Published

Opinion

McCrary, C. J.

1. It is insisted that the bond sued on, and the original contract by which defendant Joel Hester was appointed as agent for plaintiff to sell sewing machines, were entered into at one and the same time, and are parts of the same transaction, and that therefore they should be construed together as constituting one contract, and it is said that, being so construed, the liability of the obligors upon the bond should be limited to the transactions embraced within the contract. That the two instruments were intended to be and were parts of the same transaction, does not appear from anything contained in either. So far as we can gather from the contents of the papers themselves, they were separate, distinct, and independent. It is more than doubtful whether, in such a case, it can be shown by parol that the parties intended anything more or less than appears from the terms of the writing. If, however, it were competent in this way to explain this writing, it certainly would be a violation of long-settled rules to admit parol proof to add to or vary the terms of the written instrument, and this was in effect what was attempted. The bond binds the obligors “to pay, or cause to be paid, any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred, on the part of said Joel Hester to the said the Singer Manufacturing Company.” The contract contains nothing to the contrary of this. The effect is, therefore, to show by parol that which is in contradiction of the bond, viz.: that it was to secure, not all debts contracted by Hester of any and every kind, past or future, as it plainly says, but only to secure such as might grow out of the contract of agency. To admit such proof would be to vary by parol the terms of a written instrument. Bush v, Bank, 101 U. S. 98; Sewing Machine Co. v. Webster, 47 Iowa, 357; Ins. Co. v. Sedgwick, 110 Mass. 163; Frank v. Edwards, 8 Exch. 214.

2. Even if we read the two instruments together as one contract, the terms of the bonds are not varied or modified. The two instruments can stand together, and the provisions of each can have full effect. Because in thecontract Hester was appointed agent for plaintiff, with certain powers, duties, rights, and liabilities, it does not follow that it was not the purpose to make the bond sufficiently comprehensive in its terms to cover that as well as other transactions. The terms of the bond are too plain to be misunderstood. They are not ambiguous, and, in the absence of an allegation of fraud, accident, or mistake, we must give them effect according to their usual and ordinary acceptation. It follows, from those considerations, that the demurrer to the original answer was properly sustained.

3. It only remains to consider the question whether the instruction given by the court to the jury to find for plaintiff was proper. It is insisted by defendant’s counsel that the question whether the plaintiff agreed to rescind the 'bond in consideration of the execution of the second contract by the agent, Hester, should have been submitted to the jury.

There was testimony tending to show that an agent of plaintiff was present at the time of the execution of the second agreement between the company and Hester, and that he expressed the opinion that the effect of it would be to release the sureties of the bond. There was no testimony tending to show that the agent agreed or stipulated that the sureties should be released, nor was there any testimony tending to show that he had any authority from the company to make such an agreement. The expression by the plaintiff’s agent of tbe opinion that tbe legal effect of tbe .new agreement would be to release tbe sureties on tbe bond, did not (especially if not acted upon by tbe sureties so as to change tbeir legal rights) amount to a release. There was, therefore, no evidence upon which a verdict for tbe defendants could have been sustained. In such a case an instruction to tbe jury to find for tbe plaintiff is proper. Pleasant v. Faut, 22 Wall. 116.

Tbe motion for a new trial is overruled.

Keekel, D. J., concurs.