Chicago Portrait Co. v. Maddox , 112 Miss. 434 ( 1916 )

SteveNS, J.,

delivered the opinion of the court.

This is a suit upon a bond executed by J. - W. Maddox, district manager of the Chicago Portrait Company, as principal, and Carroll Bardwell, J. I. Smith, and C. W. Maxwell, residents of Lincoln county, Miss., sureties. The bond was given to secure the faithful performance and execution of a certain contract between Maddox and the Chicago Portrait Company, designated “a district manager’s contract.” The Chicago Portrait Company instructed this suit as plaintiff in the court below to recover the balance of an indebtedness due it by Maddox. When the plaintiff rested its case the defendant sureties moved to exclude the testimony and to grant them a peremptory instruction. This motion was by the court sustained, and judgment accordingly was entered in favor of the defendants, and from this judgment appellant appeals. A detailed statement in this opinion of the pleadings and the evidence would he burdensome and^very uninteresting. It - is sufficient to saw that we have read the record and the undisputed testimony calls for a denial and is sufficient to put the defendants to proof. The testimony of the plaintiff does not admit or show an extension of time without the consent of the sureties, and there is no admission of fraud or such bad faith as would estop the plaintiff. We see nothing in the contract denying to the parties the right to change the territory in which Maddox was to operate without the consent of the sureties. There is nothing in the contract, or the proof, to show any obligation on the part of the Chicago Portrait Company to notify the sureties of the monthly ’ balances due by Maddox. There was manifestly much delay on the part of Maddox from time to time in making payments upon his running account, but these delays indicate nothing more than indulgences on the part of the creditor, and should not operate as a release of the sureties. There were no representations made by the Chicago Por-, trait Company to the sureties to induce them to sign the bond. The sureties signed at the solicitation of Maddox, and not of the plaintiff. It may be conceded that the sureties undertook much when they undertook to answer for the default of their princir pal growing out of transactions in another state, but there is nothing in .the contract or the bond itself to restrict these operations to Mississippi. It was a hard contract for the sureties, and possibly their testimony may disclose to the satisfaction of the jury a perfect defense. As the bond has been written and denominated by the parties, so must it be.

Reversed and remanded.