DocketNumber: No. 10,569
Citation Numbers: 74 Ind. App. 424
Judges: McMahan
Filed Date: 12/16/1920
Status: Precedential
Modified Date: 7/24/2022
In 1911 Charles Fletcher and appellee entered into a contract whereby appellee agreed to sell to said Fletcher beer in such quantities as Fletcher desired to purchase at certain prices in carload lots f. o. b. Milwaukee. In consideration of the execution of said contract the appellants signed a bond, wherein they agreed to indemnify and hold appellee harmless from any loss by reason of any failure of Fletcher to carry out the provisions of said contract, to the amount of $2,000, and further agreeing that nothing therein should be construed to preclude appellee from extending greater credit to Fletcher, nor from applying payments in such manner as it might see fit. Said contract and bond were executed in duplicate, one copy being held by appellee and the other copy by Fletcher.
After the execution of said contract and bond, Fletcher ordered beer from appellee in carload lots and also in less than carload lots. The carload lots were shipped from Milwaukee. The broken lots were shipped from appellee’s warehouse in Indianapolis to Fletcher at Newcastle, Indiana.
In addition to the prices fixed in said contract as the prices for the beer f. o. b. • Milwaukee, appellee charged Fletcher fifty cents per barrel and fifteen cents per case for all beer shipped from Indianapolis, said additional charges being to cover the freight from Milwaukee to Indianapolis, which was paid by appellee. After the execution of said contract and bond, and after appellee
'to the above prices for all goods shipped from Indianapolis.”
Appellants had no knowledge that appellee was shipping beer to Fletcher from Indianapolis and making extra charges to cover freight, neither did they know that said memorandum was made on said copy of the contract, nor did they consent thereto.
In May, 1913, Fletcher was indebted to appellee in the sum of $3,795.95, at which time appellee notified appellants' of said fact and demanded of appellants as guarantors the sum of $2,000, which they refused to pay. Upon such refusal appellee filed its complaint herein, alleging the execution of said contract and bond and that Fletcher was indebted to it in the sum of over $2,000. A copy of said bond was attached to and made a part of the complaint. The court found the facts specially and stated as a conclusion of law that appellants were indebted to appellee in the sum of $1,980.56. From a judgment in favor of appellee, appellants prosecute this appeal and assign as error that the court erred in its conclusion of law and in overruling their motion for a new trial.
Appellants’ contention is that there was a material change and alteration of the bond without their knowledge or consent, which released them from any liability thereon.
The court found the facts above stated and that the
In considering this case we should keep in mind that the supposed alteration was not in the bond signed by appellants, but was made upon the duplicate copy of the contract between Fletcher and appellee. The bond sued upon in this case is a distinct instrument of writing from the contract, although it forms the last page of the folio on which the contract is printed. The alleged alteration not being in the instrument signed by appellant, they cannot successfully claim that the instrument which they signed does not remain just as it was when they signed it. As said by the court in United States Glass Co. v. Mathews (1898), 89 Fed. 828, 32 C. C. A. 364: “This case does not, therefore, belong to the class where a signed paper is altered without the knowledge of the signers — an act which the law most severely condemns. It is said, however, that, the license having been attached to the bond, if there was an alteration of the license by the parties to it, there was an alteration of the bond. It should be noticed, however, that by the condition of the bond the sureties do not become bound for the fulfillment of all the terms and conditions of the license, but only to pay the license fee or royalty as and at the times provided for in the license. * * * It is only by the most strained and improbable theory of possible consequences that it can be suggested how the supposed alteration in the license could in any wise affect the sureties who made themselves liable only for the payment of the royalty, or in any way increase or diminish the amount they might be called upon to pay. This case does not, therefore, turn upon the law applicable to instruments which have been altered without authority from those signing them, but upon the law with regard to the liability of sureties.”
In the instant case appellee and Fletcher entered into an agreement whereby appellee agreed to sell to Fletcher in such quantities as Fletcher desired to purchase beer for certain prices f. o. b. Milwaukee in carload lots, the prices being subject to change at the option of appellee in the event of increased cost of manufacturing, transportation, or federal tax. It was further provided that such agreement should not be binding until it had been signed by one of appellee’s officers and attested by its corporate seal. The evidence shows without conflict that the contract between appellee and Fletcher was executed in duplicate, one copy being held by Fletcher and one by appellee. This agreement was written by appellee’s manager at Indianapolis, and after it was signed by Fletcher, and after appellants had signed the bond in controversy, both copies of the contract and bond were mailed to appellee at Milwaukee
Appellants’ liability under the bond was limited to $2,000, although appellee was authorized to extend greater credit to Fletcher without in any manner affecting the liability of appellants.
Judgment affirmed.