Earl Fruit Co. v. Herman

TYLER, P. J.

Action upon a bond executed by defendant Globe Indemnity Company, as surety, in favor of plaintiff corporation.

The complaint in substance alleges that on or about the thirteenth day of September, 1923, the plaintiff, Earl Fruit Company, entered into an agreement with defendant Samuel Herman, whereby said company agreed to make daily shipments of grapes during the season of 1923 to said Herman on consignment, the grapes to be sold by Herman as agent for plaintiff; that Herman agreed to remit to plaintiff the amount received from the proceeds of the sales, less any charge for commission to which he might be entitled; that in consideration of entering into the contract, Herman, as principal, and defendant Globe Indemnity Company, as surety, made and delivered to plaintiff a surety bond in writing conditioned upon Herman faithfully accounting for and properly remitting to plaintiff such moneys as might be due to it from the sale of the grapes. The bond, which is made part of the complaint, is in the sum of $7,500, and it recites that it is to remain in full force and effect until the thirty-first day of December, 1923. Proceeding, the complaint alleges that in pursuance of the agreement

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plaintiff made shipments of grapes to Herman on consignment and that Herman, as agent, sold the same and, on or about December 1, 1923, received the proceeds of such sale, but that he failed to remit to plaintiff a portion of such proceeds amounting to the sum of $3,954.25, which sum it is alleged is now due and owing to plaintiff, and judgment is prayed for in this amount.

Defendant Globe Indemnity Company by its answer, among other things, denied ownership in plaintiff of the grapes referred to in the complaint and alleged ownership in one Henry Martin, who, it is claimed, delivered the same to plaintiff, as agent, for shipment to defendant Herman; that thereafter said grapes were shipped to said defendant by plaintiff for and on behalf of Martin and said Martin thereupon entered into a new agreement in writing directly with defendant Herman without the knowledge or consent of defendant Globe Indemnity Company, whereupon Herman issued to Martin four certain trade acceptances under which the time of payment was extended. It is then alleged that at this time Herman was solvent but thereafter became insolvent and unable to pay for the grapes.