them as such factors and commission merchants of leather to a large amount, to wit, to the amount of one thousand six hundred and eightyeight sides, weighing twenty thousand four hundred and fifty-four and one-half pounds, or thereabouts; that the said leather so consigned to the plaintiffs by the defendants was not accompanied by nor subject to any instructions from the said defendants to the said plaintiffs, as to the price for which the said leather, or any part thereof, was to be or should be sold, nor was there any limit fixed by the defendants to govern or in any way affect the price at which the plaintiffs as such factors, etc., might or could sell such leather, or any part thereof, nor was there any agreement between the defendants and plaintiffs that the defendants should control the sale of said leather or any part thereof; that at the time of and before said consignments, and in the absence of any such instructions, and of any such limits as to price, and of any such agreement, the plaintiffs became and were under advances to the defendants in respect of said consignments of leather to a large sum, to wit, in the sum of eight thousand dollars, which said advances the plaintiffs had come under by reason of their having accepted and paid divers bills of exchange for the defendants, drawn by them against and on the security of the said leather; that afterward, to wit, on the 20th day of June, 1865, while there was a large portion of said advances due from the defendants to the plaintiffs, to wit, the sum of three thousand six hundred and forty-three dollars and twenty cents, and there remained in the hands of the plaintiffs unsold, about eleven thousand nine hundred and thirtyone and one-half pounds of said leather, in and upon which the plaintiffs had an interest and a lien for said sum, and at a time before the committing by the said plaintiffs of any of the pretended breaches alleged in the said second paragraph of the defendants' answer, the defendants for the first time made known their wishes to the plaintiffs in a letter of that date, in which they used the following language, to wit: "We would say that unless you can effect sales of what remains unsold, so as to net us thirty cents or over, don't do so without our instructions, as we can do better by having it returned to us;" that afterward, to wit, on the 22d day of June, 1865, the plaintiffs, by way of answer to said letter, wrote to the defendants a letter, in which they used the following language in response to said language so used in said defendants' letter, to wit: "There has been no more of your leather sold, and it is doubtful whether we can sell your leather now to net you thirty cents. We shall await your further instructions. If you wish to remove the leather, we will make out your account, and you can remit when you order the leather to be removed;" that the defendants did not regard said letter of plaintiffs, in which said language was used, and did not communicate in any way with the plaintiffs, and did not offer to pay to the plaintiffs the balance of said advances or to remove said leather; that afterward, to wit, on the 21st day of August, 1865, when a reasonable time had elapsed, the plaintiffs, relying upon their authority to sell said unsold leather and realize against said balance of the advances, did sell the same at the best and highest price that could then be obtained for the same in the market, as well for the benefit of the defendants as for the purpose of reimbursing and repaying the said balance of advances, and with the money produced by said sale, being a less amount than the amount of said balance of advances, did then repay and reimburse themselves so much of said balance of advances as the said money was sufficient to pay and reimburse; and after giving the defendants credit for the sum of three thousand four hundred dollars and forty-eight cents; the proceeds under said sale, less the plaintiffs' commission, one hundred and seventy-eight dollars and ninety-seven cents, there still remained due to the plaintiffs the sum of two hundred and forty-two dollars and seventy-two cents; for which sum the defendants are indebted to the plaintiffs, and the payment of which the plaintiffs demanded of the defendants, on the 22d day of August, 1865, and which was refused and still is refused; wherefore they pray judgment, as in their complaint prayed. [(Signature and verification as in Form No. 5915.)]1 1. The matter to be supplied within [] will not be found in the reported case. Volume 14. 166 PRINCIPAL AND SURETY, OR 1. SURETYSHIP, 168. GUARANTOR. BY ARNOLDUS VANDERHORST. 1. Action to Enforce Contract, 169. a. Complaint, Declaration or Petition, 169. (a) Against Surety Only, 170. (b) Against Principal and Surety Jointly, 170. (2) On Lease, 175. b. Answer, Plea or Affidavit of Defense, 176. (1) Alteration of Contract, 176. (2) Extension of Time to Principal, 177. (3) Failure of Plaintiff to Proceed Against Principal After Notice, 180. (4) No Privity of Contract, 183. (5) That Execution of Contract by Surety was Conditional, 185. 9. Action by Surety Against Principal for Reimbursement, 186. a. In General, 187. (1) For Goods Sold to Principal and Costs of Judgment, 187. (2) On Note, 188. (3) On Undertaking on Appeal, 189. b. Summary Proceedings, 190. 1) Notice of Motion for Judgment, 190. (2) Judgment, 191. (a) In General, 191. (b) Against Executor of Deceased Principal, 193. (3) Execution, 193. 3. Summary Proceedings by Surety Against Co-surety, 194. a. Notice of Motion for Judgment, 194. b. Judgment, 195. 4. Notice by Surety to Creditor to Proceed Against Principal, 196. II. GUARANTY, 197. 1. Action to Enforce Contract, 198. a. Complaint, Declaration or Petition, 199.. (2) For Price of Goods Sold, 200. (3) On Bond to Discharge Mortgage, 203. (6) To Recover Deficiency After Foreclosure of Mort- b. Answer or Plea, 209. (1) Denying Plaintiff's Performance, 209. (2) Departure from Guaranty, 209. 2. Action by Guarantor Against Principal for Reimbursement, 210. CROSS-REFERENCES. For Forms in Proceedings Against Bail on Forfeited Recognizance, see For Forms in Proceedings on Fiduciary Bonds, see the title BONDS For Forms in Proceedings by Surety Against a Co-surety, for Contribu- See also the titles BILLS AND NOTES, vol. 3, p. 260; INDEM- 1. Action to Enforce Contract. a. Complaint, Declaration or Petition.' West Virginia. Code (1899), c. 101, § 1 et seq. Wyoming. Rev. Stat. (1887), $$ 3038-3052. 1. Requisites of Complaint, Declaration or Petition, Generally. For the formal parts of a complaint, declaration or petition in a particular jurisdiction see the titles COMPLAINTS, vol. 4, p. 1019; DECLARATIONS, vol. 6, p. 241; PETITIONS, vol. 13, p. 887. Parties Defendant-Generally.-Where there are no conditions or stipulations by the sureties fixing any limitations to their liability, an action may be maintained against the principal and sureties separately or against all jointly. People v. Stacy, 74 Cal. 373; State v. McDonald, (Idaho, 1895), 40 Pac. Rep. 312; McMillan v. Bull's Head Bank, 32 Ind. 11; Hays v. Closon, 20 Kan. 120; Jenks v. School Dist. No. 38, 18 Kan. 356; Governor v. Perkins, 2 Bibb (Ky.) 395; Stafford v. Harper, 32 La. Ann. 1076; Gary v. Hignutt, 32 Md. 552; People v. Butler, 74 Mich. 643; Preston v. Huntington, 67 Mich. 139; Wilkinson 2. Flowers, 37 Miss. 579; Carr v. Card, 34 Mo. 513; Domestic Sewing Mach. Co. v. Saylor, 86 Pa. St. 287; Geddis v. Hawk, i Watts (Pa.) 280; State v. Williams, 19 S. Car. 62; Kelly v. Gordon, 3 Head (Tenn.) 683; McCabe v. Sutton, 7 Lea (Tenn.) 248; Vermont State Bank v. Stoddard, 1 D. Chip. (Vt.) 157; Shannon v. McMullin, 25 Gratt. (Va.) 211. At common law, the principal and surety could not be joined except where the contract was joint and several. People v. Miller, 2 Ill. 83; Lee v. Bolles, 20 Mich. 46. Where principal is nonresident and insolvent, the action may be brought against the surety alone. Houghton v. Ledbetter, 37 Tex. 161; Bopp v. Hansford, 18 Tex. Civ. App. 340. Where principal is dead, the action may be against the surety alone. Willis. Chowning, 90 Tex. 617; Scantlin 7. Kemp, 34 Tex. 388; Boggs v. State, 46 Tex. 10. Personal representative of deceased's Surety may be joined in an action against the principal. Lawrence v. Doolan, 68 Cal. 309. ditions of all are the same, and the same burden rests on all sureties and each has an interest in some matter common to all parties, the sureties may all be joined in one action. Lott v. Mobile County, 79 Ala. 69; State v. Turner, 49 Ark. 311; Powell v. Powell, 48 Cal. 234; Com. v. Tate, 89 Ky. 608; Singer Mfg. Co. v. Ponder; 82 Tex. 653; Finch v. State, 71 Tex. 52; Keowne v. Love, 65 Tex. 152. However, where two or more obligations are sued upon in one action, each instrument should be set out in a separate paragraph, although the sureties sued are common to all. Com. v. Tate, 89 Ky. 605. That defendants executed the contract must be alleged, and an allegation that defendants gave a bond is not sufficient. Church . Campbell, 7 Wash. 547. And that sureties executed the contract must be alleged. Ghiradelli v. Bourland, 32 Cal. 585; Seattle Crockery Co. v. Haley, 6 Wash. 302. And where the complaint alleges simply the execution by the principal, it is not sufficient. Seattle Crockery Co. v. Haley, 6 Wash. 302. A mere aver ment that the sureties are securities on the bond, and that the same was duly filed, executed and recorded, is not sufficient, the execution being simply a conclusion. Ghiradelli v. Bourland, 32 Cal. 585. That defendants signed as security will be construed to mean that they signed as sureties. Albany Furniture Co. v. Merchants' Nat. Bank, 17 Ind. App. 93. Demand on principal for performance of contract need not, as a general rule, be alleged. Jones v. State, 14 Ark. 170; Treweek v. Howard, 105 Cal. 434; Coburn v. Brooks, 78 Cal. 443; Webster v. Smith, 4 Ind. App. 44; Heebner z. Townsend, (Supreme Ct. Spec. T.) 8 Abb. Pr. (N. Y.) 234; State v. Williams, 19 S. Car. 62; State v. Biesman, 12 Mont. II. But where the contract provides that a demand on principal is necessary to fix the liability of surety, such demand must be averred. Coburn v. Brooks, 78 Cal. 443; Morgan v. Menzies, 65 Cal. 243. Notice to surety of default on part of principal need not be alleged. Jones v. State, 14 Ark. 170; Treweek v. Howard, 105 Cal. 434; McMillan v. Bull's Head Separate Undertakings.-Where there are several undertakings, but the con Bank, 32 Ind. 11; Heebner v. Town |