Plunkett v. Davis Sewing Machine Co.

Bryan, J., delivered the opinion of the Court. The Davis Sewing Machine Company, a corporation, of the first part, and John C. Foote, of the second part, made an agreement in writing. We will quote some passages from it. It stated: “That the said party of the first part has this day appointed the said party of the second part its authorized agent for the sale of the Davis Sewing Machines, which sewing machines shall be consigned to him by the said party of the first part; and for the further purpose of collecting and remitting cash, notes and mortgage leases received from the sale of such machines ; and for the further purpose of caring for, holding and storing such machines as are hereinafter specified, and for no other purpose whatever.

The territory in which said sales and leases of said Davis Sewing Machines may be made by said party of the second part under this contract, is Baltimore County, in the State of Maryland.” It contained the following among other stipulations : “ Second. Said party of the second part shall continuously devote his entire time, skill, and best efforts to the vigorous prosecution of the business of selling and leasing said sewing machines in all parts of said territory, so that in every part of the same said business shall be continuously and vigorously prosecuted by the party of the second part.” There are a number of clauses relating to the manner of transacting the business, collecting and paying over money and other details. Theviews which we have taken of this case make it unnecessary to refer to them more particularly. At the time this agreement was made, Plunkett, ⁵³² the appellant; by a contract in writing made with the Machine Company guaranteed the performance by Foote of all the engagements contained in the agreement above mentioned, including the payment of all indebtedness to the Machine Company, which might be incurred by him.

The guaranty contained the following clause : “ The within contract -may be varied or modified as to terms, prices or territory, by the mutual agreement in writing of said Davis Sewing Machine Co., through its secretary, and John C. Foote, without in any way impairing or affecting my liability on this guaranty.” An action at law was brought on the guaranty by the Machine Company against Plunkett, and a judgment was obtained against him. ■ The evidence tended to show that Foote had made default in several particulars and that he was indebted to the Machine Company in the sum of about five hundred dollars : also that the said company had enlarged the territory within which he was .to exercise his agency ; and that in addition to sending to him the Davis Sewing Machines, had sent him other machines of a different make, some of which were of a lower price and inferior quality and did not give satisfaction to customers; and also that no agreement in writing had been made between Foote and the company (as it is expressed in the bill of exceptions) for a “ variation or modification of the territory of his agency.” The record does not state in how many places beyond the limits of Baltimore County Foote was authorized to act. as agent for the company. It is very certain, however, that his responsibilities were materially enlarged by an extension of the territory within which he was to act. A more onerous duty was imposed upon him, the purpose of which was that he should become responsible for his dealings with a greater number of machines, and necessarily for the collection and payment of a larger amount of money. These changes were inconsistent with the duties which by the written contract he agreed to perform.

It was impossible for him (as he agreed by the second stipulation already quoted) to “ devote his ⁵³³ entire time and skill and best efforts to the prosecution of the business ” within the limits of Baltimore County. This obligation was eliminated from his contract with the Machine Company ; and