McGeever v. Terre Haute Brewing Co.

• Decision Date: 17 January 1918
• Docket Number: 6 Div. 651.
• Citation: 201 Ala. 290,78 So. 66
• Parties: McGEEVER et al. v. TERRE HAUTE BREWING CO.
• Court: Alabama Supreme Court

78 So. 66

201 Ala. 290

McGEEVER et al. v. TERRE HAUTE BREWING CO.

6 Div. 651.

Supreme Court of Alabama

January 17, 1918

On Rehearing, February 16, 1918

On the Merits.

Appeal from Circuit Court, Jefferson County; H.A. Sharpe, Judge.

Action by the Terre Haute Brewing Company against Hugh McGeever and others on a guaranty bond. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Tillman Bradley & Morrow, Richard H. Fries, William B. White, and J.D. Rucker, all of Birmingham, for appellants.

Sterling A. Wood, of Birmingham, for appellee.

On Motion.

McCLELLAN J.

The submission includes a motion by appellee to strike all assignments referable alone to the erstwhile judgment rendered by the circuit court of Jefferson in this cause on February 14, 1916, which judgment preceded the former appeal and decision of reversal made in this cause as reported in 73 So. 889. The second, present, appeal is from the judgment rendered, after previous reversal, by the court on May 15 1917, and in this judgment entry no ruling is recited as having been made in the circuit court with respect to the subject-matter of the assignments of error to be enumerated. The motion is well taken under the apt authority of Ala City Ry. Co. v. Bates, 155 Ala. 347, 46 So. 776; Sellers v. Dickert, 194 Ala. 661, 69 So. 604. The effect of the motion to strike assignments of error is to eliminate the assignments numbered 1, 2, 3, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, and 17. The motion is sustained, and the indicated assignments are therefore stricken.

On the Merits.

The appellee, an Indiana corporation, brought this suit against the appellants as sureties on a bond of guaranty. The instrument declared on purports to have been executed by the appellants and to guarantee the performance of a certain contract between Abe Siegel and the brewing company for the purchase in Indiana of beer by Siegel. A more ample statement of the case may be found in 73 So. 889. The complaint contained amended count 1, whereby the legal effect of the contract was undertaken to be averred, concluding with allegations of breach; and count 2, wherein is set out the bond and the contract, the performance of which the bond purported to guarantee, together with allegations of breach. The defenses were constituted of issues tendered by the general traverse of the complaint, and plea 1, which, as amended, reads:

"For answer to the complaint and to each count thereof defendants say that the bond on which the action was founded was not executed by them, nor either of them, nor by any one authorized by them, or either one of them in the premises."

Aside from the above-enumerated assignments of error which the motion eliminates, those remaining are predicated of rulings on pleas, of excerpts from the oral charge of the court, of the action in giving and refusing, respectively, special request for instructions, and of the overruling of the motion for new trial. The fifth assignment complains of the action of the court in sustaining demurrer to "plea 8," noted as being at transcript pages 21, 22. In the judgment of May 15, 1917, there is recited such a ruling as to "plea 8." On pages 21, 22, of the transcript there is a pleading designated "plea A" opposite its caption; but opposite the title, "Plea and Answer to the Complaint," this appears in dim typewriting: "#8." In the judgment entry of May 15, 1917, preceding the stated ruling on "plea 8," it is recited that plea A was "withdrawn." This recital undoubtedly referred to "plea A" above mentioned. That is the only "plea A" we can discover in the record. The dim characters, "#8" cannot be accepted as designating "plea A" as plea 8. So there is no "plea 8" in the transcript to which the fifth assignment can be referred. The appellee's brief, at page 12, correctly notes the absence of any "plea 8" in the transcript.

The report of the appeal will contain pleas 9, 10 as amended, and 11. There is argument in the brief for appellant based upon a ruling sustaining demurrer to plea 10 (before its amendment); but there is no assignment of error presenting for review that claim of error.

Plea 9 was subject to the demurrer. In general theory it sought to bar a recovery on the bond on the ground that the contract, the performance of which the bond assured, was abrogated by the principals as the necessary consequence from particular acts averred, without the knowledge and consent of the sureties, the defendants or any of them. It is to be observed that the plea does not charge, unqualifiedly, the abrogation of the contract by the principals. It would invoke the legal deduction of abrogation of the contract, by the principals thereto, from the particular facts recited in the plea. These facts the pleader characterizes as a conspiracy to violate the then existing prohibition laws of the state of Alabama. The fifth, sixth, and seventh grounds of the demurrer were due to be sustained under the authority afforded by the doctrine of the opinion delivered on the former appeal. 73 So. 889, 891. It was there held that in order to operate to constitute a conspiracy to violate Alabama's prohibitory statutes, that would defeat a recovery on this bond, the contract, of which the bond undertook to assure faithful performance, must have had either a consideration tainted with the asserted unlawful purpose of these principals, or such unlawful design must have induced the formation of the contract declared on. While the demurrer was well sustained on the grounds indicated, it is by no means clear that the plea was sufficient with respect to the facts upon which the pleader's conclusion was rested. Indeed, it does not appear from any affirmation of fact made in the plea that the then existing laws of this state were in fact offended, or that they forbade what the pleader conceived was done by these principals, if, in fact, the purpose of their agreement ever became effective.

In plea 10, as amended, express reference was made to the fact that the contract mentioned in the plea was the same contract set out in the complaint. There is no contention that the contract declared on in the first count was other than the same contract set out in the second count. The plea must be read and considered in connection with and in the light of the pleading it purports to answer. The plea, as amended quoted the feature of the contract, of which the bond purported to guarantee performance, whereon the defendants relied to show such a change of the contract by the principals as operated to release the sureties on the bond. The form of this plea was unobjectionable. It is settled in this jurisdiction that the contract of a guarantor must be strictly...