Victor Sewing Machine Co. v. Scheffler

Citations

• 61 Cal. 530
• 1882 Cal. LEXIS 659

Syllabus

<p>Variance—Pleading—Contract Bond—Principal and Surety—Finding—Evidence.—L., as principal, and the defendant with one B., as sureties, executed a bond to the plaintiff to secure the performance of an agreement between the plaintiff and L. as its agent for the sale of sewing machines, consigned by the plaintiff to him. The agreement provided that L. should not at any one time have on consignment more than six machines. The bond provided that the agreement might be varied or modified, by the mutual agreement of the plaintiff and L., as to the manner of carrying on the business, or as to the compensation of L., or as to the period of which L.- shall report to and pay the plaintiff for the machines sold, or as to the territory on which the machines shall be shipped or sold, without affecting the liability of the obligors on the bond. The agreement was subsequently, without the consent of the defendant, changed, so as to permit the assignment to L. of more than six machines, and that he might have more than six at the same time.</p> <p>Held: That the clause in the bond continuing the liability of the sureties, notwithstanding a change in the contract “as to the manner of carrying on the business,” did not authorize the change by which L. was to have more than six machines at the same time.</p> <p>Finding.—The finding of the court below to the effect that after the execution of the contract and bond, transactions to a considerable amount took place .during a long period of time between L. and the plaintiff, resulting in a loss to the plaintiff, and that such transactions were more ex- ■ tensive, and involved greater liability, than those contemplated in the contract and bond, is a finding that an oral agreement, express or implied, had been substituted by the parties, or that the original had been materially altered with their consent. In the action upon the bond the plaint-tiff set forth breaches of the original agreement between it and L., but the evidence of the plain