The following opinion was filed February 2, 1886:
Tayloe, J.A motion for a rehearing is made by the respondent in this case upon two grounds:
Birst. It is said this court admits the liability of .the appellant Brown on the contract set out in the complaint, and consequently that under the statute judgment was properly entered against him, although as to the other defendants no cause of action was proved; and that the judgment should therefore have been affirmed as to him. See sec. 2885, R. S.; sec. 3011, R. S.
We think the learned counsel is mistaken as to the ruling of this court upon the appeal. We held that the sureties were not liable upon the contract signed bjr them for the business done by their principal in Oshkosh, and, as that was the only contention in the circuit court, it was unnecessary to determine whether the principal, Brown, was liable *107upon that contract for the business done there. It was claimed by him that the business he did there was under a new and different contract; and, as we were of the opinion that as to him that question had not been fully tried in the circuit court, we reversed the judgment as to all the defendants, leaving the plaintiff to commence a new action to recover of him for the business- done in Oshkosh, either upon the new or old contract, if it saw fit to do so. We inserted the qualification in the judgment of reversal, so that the judgment in this case might not be set up as a bar to such new action.
Second. It is insisted we ought to rehear the case upon the main question. Notwithstanding the criticism made by the learned counsel upon the decision of this court upon the main question in the case, we are clearly of the opinion that the decision is correct.
The case of the Howe Sewing-Machine Co. v. Layman, 88 Ill. 39, cited by the learned counsel, is certainly not in conflict with our opinion, so far as can be ascertained from the report of the case. In the opinion in that case the court say: “ The bond provides that it shall be binding if the business of the canvassers or their location should he cha/nged by the company, notwithstanding they only agreed to work at Yirden or in its vicinity; hence when the change was made they were bound to accept the change and could not have refused, and they do not seem to have interposed any objection; therefore the bond remained binding on all the obligors for previous as well as for the future acts of Layman & Duncan.”
If this reference by the court to the conditions of the bond in that case is a true statement of its conditions, then it was an entirely different one from that upon which the action in this case is founded. Certainly there is no express condition in the bond in this case that the canvasser, Brown, should do business for them in any place or places *108other than those mentioned in the bond; and we still think, npon a fair and just construction of its provisions, there is no such implied condition. As there was no provision in the contract requiring Brown to do business in any other place than the place mentioned in the bond, his voluntary consent do business in another place could not bind his sureties.
We see no reason for a rehearing in this case.
By the Court.— Motion for rehearing denied, with $25 costs.