This suit was brought in the district court of the Third judicial district of the territory of Utah, on the first of October, 1879, by the Victor Sewing-Machine Company, against two persons named Crockwell and Bassett and one named Murphy. On the eleventh of March, 1876, the company, of one part, and Crockwell & Bassett, copartners by that name, of the other, entered into a written agreement, whereby (1) the former appointed the latter exclusive agents for the sale of the Victor sewing-machine for certain counties in Utah territory; (2) the former to deliver the machines, free of charge, at Chicago; (3) the former to sell the machines to the latter at 50 per cent. discount from retail list of prices, and parts and attachments at regular agents' prices; (4) settlement to be made by note at 12 months from first of month following date of invoice, payable to the former, or its order, at bank in Salt Lake City, with 6 per cent. interest, or, in lieu, the latter may indorse and assign to the former promissory notes, drawing interest, given to the latter, not payable longer than 12 months from the time they are received by the former. On the same day the three defendants executed a joint and several bond, under seal, to the plaintiff, in the penalty of $2,000, with a condition, of which all that is material to this case was as follows: 'The condition of this obligation is such, that if the above-bounden Crockwell & Bassett shall well and truly pay, or cause to be paid, unto the said Victor Sewing-Machine Company, any and every indebtedness or liability now existing, or which may hereafter in any manner exist, or be incurred, on the part of the said Crockwell & Bassett to the said Victor Sewing-Machine Company, whether such indebtedness or liability shall exist in the shape of book-accounts, notes, guarantied leases, renewals or extensions of notes, accounts, or guarantied leases, acceptances, indorsements, or otherwise, or whether such liability shall arise from the consignment of machines or other property to the said Crockwell & Bassett by the said Victor Sewing-Machine Company, under any existing contract, or any contract which shall be hereafter entered into in writing by and between the said Crockwell & Bassett and the said Victor Sewing-Machine Company, hereby waiving presentment for payment, notice of non-payment, protest, or notice of protest, and diligence, upon all notes or leases now or hereafter executed, indorsed, transferred, guarantied, or assigned by the said Crockwell & Bassett to the Victor Sewing-Machine Company, then this obligation to be void; but otherwise to be in full force and effect.'
This suit is brought to recover the amount of the penalty of the bond. The complaint sets forth in hoec verba the agreement and the bond, and avers that between the eleventh of March, 1876, and the first of January, 1877, the plaintiff, in pursuance of the agreement and at the request of Crockwell & Bassett, sold and delivered to them Victor sewing-machines, of the value of more than $5,000; that the defendants have broken the conditions of the bond, in that Crockwell & Bassett, in part payment for such machines, made and delivered to the plaintiff their four promissory notes,-one for $423.50, dated April 1, 1876, at 12 months, with interest; one for $1,216.75, dated May 2, 1876, at 12 months, with interest; one for $49.50, dated September 9, 1876, at 9 months, with interest; and one for $369.47, dated September 1, 1876, at 12 months, with interest, all providing for 10 per cent. interest per annum after due until paid, and 10 per cent. attorney's fees, if collected by an attorney; that Crockwell & Bassett, between the dates first named, resold to purchasers some of the machines, and took the notes of the purchasers therefor, and, in part payment to the plaintiff, indorsed and guarantied the payment of said notes, and delivered them to the plaintiff, their principal amounting to $1,012; that Exhibit B to the complaint contains a statement of the date of each note, the date when due, the name of the maker, and the amount; and that there is due to the plaintiff on all of said notes over $4,200, for principal, interest, and attorney's fees, less a credit of $1,226.31.