
    Charles C. Haskell v. Frank Burdette and others.
    A mortgage was given to secure a bond with a penalty of $2,000, conditioned that a third person, F. B., should, under a cotemporaneous written agreement, faithfully account to the mortgagee for the proceeds of sales of all goods furnished by the mortgagee to F. B., as his agent, and sold by F. B. on commission.—Held, that a bill of foreclosure alleging that F. B. had, pursuant to such agreement, sold goods and had not accounted for the proceeds, and was indebted to the mortgagee in the sum of $2,000, which the mortgagors had not paid (making F. B. a party, and praying an answer under oath), is good, without first establishing, by suit at law, the amount of F. B.’s indebt edness.
    Bill to foreclose. On general demurrer.
    
      
      Mr. G. IE. P. Howard, for the demurrer.
    
      Mr. T. A. Jobs, for complainant.
   The Chancellor.

The mortgage in suit was given to the complainant by Hiram Burdette and wife, to secure the payment of a bond given by them to the complainant, in the. penalty of $2,000, with condition that Frank Burdette, or the obligors, would well and truly pay, or cause to be paid, to the complainant or his legal representatives, the amount due or to become due under a certain agreement in writing, set out in the bill, made by and between the complainant and Frank Burdette; the liability of the mortgagors, however, not to exceed, in any event, $2,000, and not in any event to exceed the amount actually due from Frank Burdette to the complainant.

The agreement provided that the complainant should furnish to Frank Burdette certain goods, to be sold by the latter for the former, as his agent, for a specified compensation, and that Burdette should remit to the complainant the proceeds of the sales, less the commissions, immediately on the receipt thereof.

The bill states that Burdette has not kept the covenants on his part contained in the agreement, and has not remitted to the complainant the proceeds of all the sales of the specified goods, but, on the contrary, is indebted to the latter, in and by the terms of the agreement, in the sum of $2,000, which he neglects and refuses to pay; and that the mortgagors have not paid or caused to be paid to the complainant the amount due to him from Frank Burdette in and by the agreement, to wit, the sum of $2,000, according to the condition of the bond and mortgage. The demurrer is general.

■ The averments of the bill are sufficient. The agreement provides for the payment of no money by Frank Burdette except that which is before mentioned—the proceeds of the sales. There is, therefore,’no uncertainty in the statements. Frank Burdette is a party to the bill, and it prays answer on oath. It is urged, on the part of the demurrants, that the establishment of the alleged debt by suit at law against Frank Burdette, is a necessary prerequisite to the institution of a suit to foreclose the mortgage. But this suit is a proper proceeding, and this the proper forum in which to litigate the question as to the liability of the mortgagors, and the amount of it. Brandt on Suretyship § 524; Degrieff v. Wilson, 3 Stew. Eq. 435.

The demurrer will be overruled.  