
    SINGER MANUFACTURING CO. VS. STEININGER.
    Where the defendant, an agent of a sewing machine oompany, testified that he made returns to the company of oertain leases of sewing machines, he cannot be contradicted by proof that snch leases were not entered in the-books of the company.
    A party cannot complain that a receipt was submitted to the jury if he has not asked the Court to construe it.
    Evidence to show that a party was induced to become surety on a bond by fraudulent misrepresentation of the obligee is admissable.
    
      Error to Common Pleas of Lehigh. County. No. 200, January Term, 1882.
    Isaac W. Steininger took the agency of the Singer Manufacturing Company at Reading and gave his promissory note for $5,738.72 for the machines, fixtures, &c. He also entered into an agreement to pay for all machines received, and the rent of all machines leased b}r him, George W. Steininger signed a bond for the fulfillment of Isaac W. Steininger’s agreement. Afterwards the Singer Company brought suit, and during the trial proposed to show by a witness that as chief clerk of the plaintiff he had made an examination of all the books of the company while Isaac Steininger was agent and that thirteen leases appeared to have been duplicated in defendant’s bill of particulars and are not duplicated in the books of the company, and as an expert in the examination of the books in regard to defendant’s bill of particulars. The ■Court sustained an objection to the relavancy and competency of this offer, and this ruling forms the subject of the first assignment of error. The following receipt was offered in evidence by defendant:
    “Received. January 14th, 1874, of Isaac "Wj Steininger the sum of Five Hundred and Seventy-two Dollars in full of all demands on, account of all coupons .received or had by him which we have any knowledge of.
    Horace A. Yundt,
    Attorney for Singer Manufacturing Co.”
    The plaintiff objected to the receipt as incompetent and irrelevant. The Court overruled the objection, and this forms the second error. The admission of testimony under the following offer forms the subject of the third error.
    “Defendant proposes to prove by the witness that George Steininger ivas induced to sign and execute the bond upon which this action is founded by false and fraudulent representations made to him before and at the time of the making of the bond by James W. Seymour, the agent of the plaintiff; that Mr. Seymour represented to the defendant on the 9th and 10th days of March, 1873, that he was not to be liable on said "bond unless certain sewing machines, &c., which wTere to be delivered to Isaac W. Steininger, the principal obligoi, were-not surrendered and delivered to the plaintiff on demand, and unless all the leases which might be procured by the said Isaac W. Steininger were not delivered to the company ; that. Mr. Seymour further represented that there would be no-liability and responsibility incurred in signing the bond • that it was only a matter of form required by the company that it was nothing more than a guaranty as to the honesty of Isaac W. Steininger ; That Mr. Seymour did not divulge the fact to George Steininger that Isaac W. Steininger had signed the note for $5,700, on the 8th of March, 1873 ; that Mr. Seymour wras in possession of this note at the same time • that upon these representations made by Mr. Seymour before- and at the time of the execution of the bond in suit, George Steininger, relying upon the truth of them, signed the bond • defendant further proposes to show that George Steininger is unable to talk, write or read English.”
    The following letter was given in evidence :
    Philadelphia, March 24, 1873.
    Mr. Isaac W. Steininger, Reading, Pa. — Dear Sir :— In reply to yours of 21st inst., would say, return us what machines you choose and they will be credited to your note.
    Yours Truly,
    Thomas K. Ober, Agt. J. P.
    The following is the material portion of the charge, per:
    Albright, P. J.
    Gentlemen of the Jury : This is an action of covenant brought by the Singer Manufacturing Company against George Steininger, who is impleaded with Isaac W. Steininger, upon a bond which George Steininger executed.
    The plaintiff seeks to recover on his bond against George Steininger for a certain indebtedness of Isaac W. Steininger, which it is alleged is secured by his bond.
    The plaintiff asks a verdict in its favor in the first place for the amount due on a promisory hdte given by Isaac W. Steininger to his own order endorsed to the plaintiff, dated March 8th, 1873 ; and in the second place, lor a certain balance of $556.65, which it is alleged fs due upon the undertaking of Isaac W. Steininger as security on certain leases which have been received in evidence. The balance which the plaintiff alleges to be due on the note and the balance on these leases thus secured by Isaac W. Steininger with interest on the two items is the plaintiff’s claim.
    This bond is upon condition that “Isaac W. Steininger shall pay or cause to be paid to the company, or their assigns, the full amount of each and every indebtedness, or liability now -existing, or which may hereafter in any manner exist, or be incurred by or on the part of said Isaac W. Steininger with the company for and on account of all and every sewing machines, ■and all and singular the sewing machine findings, silks and threads, or other articles that he, the said Isaac W. Steininger, may have heretofore received, or that may from time to time hereafter be sold, consigned, supplied or otherwise entrusted to him, the said Isaac W. Steininger, upon his orders or request, with or without notice to the said George Steininger, Sr., of such sale or consignment by the said Singer Manufacturing Company to the said Isaac W. Steininger, whether such indebtedness or liability now existing, or hereafter to be in■curred, shall exist in the shape of book accounts, notes, renewals or extensions of notes, accep tances, bills of exchange, endorsements, guarantees or otherwise, with or without notice to the said Isaac W. Steininger.”
    - I instruct you, gentlemen, that the note dated March 8th, 1873, upon which the plaintiff claims, is covered by this bond, .and if any sum is found to be duo upon that note the plaintiff is entitled to recover that sum with interest against George Steininger; and I furher instruct you that whatever may be due upon this security or guaranty on the leases, as it has been called by counsel, is also covered by this bond, and the plaintiff is entitled to recover it.
    The defendant says that the note of March 8th, 1873, was .¿ven for horses, carriages, machines, &c. He also says that by Ms contract, when these articles were bought and the note given, he had a right to return machines whenever he chose, and have credit for them. It appears that the horses, wagons and the other things on hand were bought back by the company when Isaac went out of business. You will ascertain what the contract was, and also what credit on the note, if any, Isaac Steininger is entitled to. The plaintiff admits certain credits aggregating a certain sum. I will not now stop to ascertain the exact amount, but it is given here as being $4,302.59. These credits are endorsed on the note under dates from March to December, 1873. The note was made payable one year after its date, which is March 8th, 1874. These payments, which are endorsed upon it, were all made before the note fell due.
    [Isaac Steininger says he had the right to return whatever machines he chose, and that they were to be credited on this note. You will inquire whether that was the bargain or not. Was that the contract entered into between Isaac Steininger and the agent of the company ? If it was, you will inquire whether he did return machines, for which he is entitled to credit under that contract, other than the items mentioned on this note ? If he did, he will be entitled to those credits in addition to the credits endorsed upon it.] (4th Error.)
    You have heard the testimony of Mr. Seymour read, as to what the contract between the parties was ; and you have heard the testimony of Mr. Steininger, and it is alleged that some of the letters throw a light upon the question as to what the contract was. [You will ascertain whether under that contract Isaac W. Steininger was entitled to credits other than those he has received for returned machines.] (5th Error.)
    The note, the execution of which is not disputed and is proved, imports a consideration. The plaintiff is entitled to recover the amount of the note, and it is for the defendant to show what payments he made on account. As is stated before the plaintiff admits certain payments made on account. If there are other payments alleged by the defendant it is for him to prove them. The burden of proving those credits is upon him. The other branch of the claim is upon these leases. It appears that Mr. I. Steininger, as an agent of this-company, or as a purchaser of machines from the company, sold machines to various individuals, and took papers, which, have been denominated leases. These leases bound each person who took a machine and entered into such a lease, to* pay to the company $5 each month after the date of the leases, for the use of the machine ; and when the sum equal to the-price agreed upon — $65 or $70, or whatever it was — had been promptly paid, at the rate of $5 for the requisite number of consecutive months, the company was to make a bill of sale to the lessee thereof, and such lessee was then to become the owner. It is further stipulated in each lease that in default of such payment, the person having such a machine is to redeliver it to the company within five days after the payment, has become due, or permit the company to remove it.
    Isaac Steininger became security for the performance of all' these agreements. It is alleged that nearly every machine,, where the lessee did not comply with the terms, has been taken up by the agent and returned to the company, and accepted by it. Where a machine was so handed back, or taken away by the company, the person who had leased it, owed to the company $5 for each month he or she had it, less-such sums as had been paid, if any, and Isaac Steininger, as. security, was bound to make good this obligation on each machine to the company. In other words, he owed the company on each lease the sum of $5 for each month the lessee-had the machine in his or her possession. If Mr. I. Steininger, or his canvassers, in the case of a machine or machines, taken from the lessee, because of non-compliance with the terms, of the lease, has received part of the price or rental of the machine, and had not paid it over to the company, he would,, of course, still owe that sum, whatever it is. AVhatever sum, if any, Isaac Steininger owed on such lease as security thereon, is covered by the conditions of the bond sued on, as I have already said, and George Steininger is liable for it.
    The plaintiff, in his statement, and also in the bill of partitulars as filed, in this case, does not claim for all of these coupons, but admits that a certain amount had been paid by the purchasers or lessees of machines, and had been received by the company, and they say that the balance due upon the guaranty or security of these leases is $556.65. You will ascertain from the evidence whether this is the amount, and if not, what other amount is thus owing, and upon that amount, whatever it may be, the plaintiff is entitled to interest. The plaintiff claims interest thereon from April 28th, 1877, to this date. The claim being then that interest is only due from April 28th, 1877, you will be justified in taking that as the starting point in the calculation of interest on that item of the plaintiff's claim.
    You will then take this case, gentlemen, and start with the fact that this note imports a consideration, and that the plaintiff is entitled to recover it, unless the defendant can show that it is paid. In order to arrive at that conclusion you must be satisfied, from the evidence that payment has been shown. If it is not all paid you will ascertain how much is still owing. As to the leases whereon the defendant is bound on as security. According to the terms of the leases, as I have explained to you, where a machine was taken back and accepted by the company, before the time, to which the lease ran, had expired, the rental stopped when the machine was re-taken for the company, but the lessee would owe for the time he had the machine, and Isaac Steininger, by his being liable as security, was bound for that sum. The plaintiff says the amount due upon that branch of his claim is $556.65. You will ascertain whether it is that or a less sum.
    On May 3rd, 1881, verdict for plaintiff for $56.76.
    The Singer Company then took this writ of error.
    Messrs. Butz & Schwartz and A. B. Longaker, for plaintiff in error,
    argued Steininger having sworn that he had made returns of certain numbers, which were duplicate numbers, it was competent to show that there were no such cases entered in the books of the company. As to the second, error they cited 1 Greenleaf on Evidence, Sections 82, 84 & ■569. The Yundt receipt should have been construed by the Court if admissable.
    Messrs. John D. Stiles & Son and E. Holben, contra.
   The Supreme Court affirmed the judgment of the Common Pleas on March 21st, 1882, in the following opinion :

Per Curiam :

The books of the plaintiff below would not have been evidence in their favor, much less was the testimony of their ■clerk as to what they did not contain. No objection was made to the authority of Yundt to give the receipt offered in evidence, and its effect was more properly a question to arise after its admission. We think the offer of evidence by defendants was rightly admitted, and upon the whole the case was properly submitted to the jury.

Judgment affirmed.  