Wright v. German Brewing Co.

Briscoe, J., delivered the opinion of the Court. This is a suit at law, brought in the Circuit Court of Allegany County by the appellee, the German Brewing Company, a corporation, duly incorporated under the laws of the State, against the appellant, as co-surety, on a bond conditioned for the faithful performance of duty, by an. agent employed by the appellee corporation. The bond sued on is dated the 29th of October, 1904, and states, “that Roger C. Sinn has entered into an agreement with the German Brewing Company of Allegany County, to buy and sell their beer exclusively in Lonaconing, Md.,” and other described territory in accordance with the terms and ³⁷⁸ conditions of an agreement executed by them. This agreement is dated on the 28th of October, 1904, and is in effect as follows, that the agent had agreed to handle the beer of the Brewing Company during the continuance of the contract and to sell the same at not less than seven ($7.00) dollars per barrel, and one ($r.oo) dollar per case of two (2) dozen pint bottles, agreeing not to solicit, sell or deliver beer to any dealer or’ person doing business or living within the territory now covered by any other .agent and to return promptly, to the Brewing Company, all cooperage, bottles and cases at his own expense f. o. ,b. cars Lonaconing; that he further agreed to keep all the beer purchased by him in good merchantable condition satisfactory to the parties; that he also agreed to pay the Brewing Company for all beer and ice within thirty (30) days from date of shipment.

The bond was executed by the agent, with Peter E. Wright and W. H. Black as sureties, and its condition was, that “if the principal should well and truly carry out and perform all the acts required by the agreement, then the obligation to be void, otherwise to be and remain in full force and virtue in law.” The declaration states the breach of the contract to be that the obligor had failed to pay, upon demand, for a large quantity of beer and ice shipped and delivered to him, in accordance with the terms of the contract, towit, the sum of $1,176.79. To the declaration the defendant filed in addition to the plea of non est factmn two other pleas. The second plea alleges, that the defendant signed the bond as surety upon the condition that it should also be signed by one Wm. H. Black, but the principal falsely and without authority forged the name of.

Black to the bond. The third plea, was to the effect that the bond, and the defendant’s signature thereto, were obtained by the misrepresentation of the appellee corporation as to the character of the principal of the bond and the fraudulent concealment by the plaintiff of the fact that the agent while in its employ as shipping clerk before the delivery of the bond, committed the crime of forgery, by raising a freight bill. ³⁷⁹ ■The plaintiff replied to the defendant’s second and third pleas, and specifically denied the allegations of fact set out in them. Upon the issue joined on the first plea and the plaintiff’s replication to the second and.third pleas, the case proceeded to trial. The defendant reserved three exceptions, two of which relate to the action of the Court in granting motions to strike out certain testimony, which had been admitted subject to the right to strike it out at the close of the case and the third to the rulings of the Court upon the prayers.

The verdict and judgment being for the plaintiff, the defendant has