Aetna Casualty and Surety Company v. Cunningham

• Decision Date: 12 August 1955
• Docket Number: No. 15334.,15334.
• Citation: 224 F.2d 478
• Parties: AETNA CASUALTY and SURETY COMPANY, Appellant, v. John F. CUNNINGHAM, Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

224 F.2d 478 (1955)

AETNA CASUALTY and SURETY COMPANY, Appellant, v. John F. CUNNINGHAM, Appellee.

No. 15334.

United States Court of Appeals Fifth Circuit.

July 15, 1955.

Rehearing Denied August 12, 1955.

Harvey L. Hardy and Carl Wright Johnson, San Antonio, Tex., Elmer W. Beasley, Hartford, Conn., of counsel, for appellant.

Leonard Brown, San Antonio, Tex., for appellee.

Before RIVES, Circuit Judge, and DAWKINS and DE VANE, District Judges.

RIVES, Circuit Judge.

Appellant, Aetna, sued appellee, Cunningham, for $32,000.00 and interest thereon from December 23, 1949, at which time Aetna issued its draft in that amount to San Antonio Independent School District to make good the failure of Cunningham to complete a building contract, on the performance bond for which Aetna had become his surety. The complaint presented two separate claims of the right to recover the same amount: First, that Cunningham had induced Aetna to execute said bond for his benefit by making to Aetna a materially false statement in writing respecting his financial condition; and, second, that in the application for the bond, Cunningham agreed to indemnify Aetna for all losses sustained by it in consequence of its suretyship. At the outset of the trial, the second claim based on the indemnity contract was conceded, and the issue litigated was the first claim, that is whether Cunningham was guilty of fraud in inducing Aetna to become his surety. The district court found Cunningham liable under the indemnity agreement but not guilty of fraud, its findings of fact and conclusions of law being copied in the margin.¹

At the outset there is some doubt as to whether Aetna can appeal from the judgment which was in its favor in the amount prayed. If the relief granted was all to which Aetna was entitled, the mere fact that it was granted on one ground rather than on another would not make Aetna an aggrieved party on appeal. See 4 C.J.S., Appeal & Error, § 183, p. 360. But amount is not the sole measure of the relief to which a party may be entitled. The judgment may have different qualities and legal consequences dependent on the claim on which it is based. At the beginning of the trial, Aetna's counsel, in response to an inquiry from the court, frankly stated his reason for insisting on the tort claim for fraud and deceit, "Because if we get a straight contract judgment it would be dischargeable in bankruptcy * * *."

It would be premature for us to pass upon the effect of bankruptcy on a judgment on either claim,² or upon whether the finding that Cunningham's representations were not fraudulent would be res judicata as to the operation of a discharge in bankruptcy.³ It is enough at this time for us to hold that, if Aetna was denied judgment of the quality to which it laid claim, it is a party aggrieved on appeal.

Nor can we agree with Cunningham's counsel that at this time the question is entirely moot, because Cunningham may never file a petition in bankruptcy, or may never be adjudicated a bankrupt. It would be a dangerous doctrine to deny a plaintiff the right to present such issues before bankruptcy, or a discharge therefrom, because by that time evidence may be lost, witnesses may have died or moved away, or various new defensive claims may have arisen, such as waiver of the tort and election to stand on the contract, the statute of limitations, etc. So long as the judgment remains unpaid, the question cannot be said to be moot.

While judgment on either claim would be in the same amount, and payment of the judgment would bar both claims, the two claims in their origin are separate and distinct, the one resting on fraud in inducing Aetna to become Cunningham's surety, and the other being on a separate contract of indemnity. This Court has held that the holder of a note evidencing a loan secured by false representations as to the value of stock offered as security could proceed on the note and at the same time seek to enforce his cause of action for deceit, that, "They are in no sense inconsistent remedies." Zimmern v. Blount, 5 Cir., 238 F. 740, 745. Even if inconsistent, Rule 8(e) (2), Fed.Rules Civ.Proc. 28 U.S.C.A. now provides: "* * * A party may also state as many separate claims * * as he has regardless of consistency * * *." The law is fashioned to work substantial justice in real transactions. We hold, therefore, that when, as a practical matter, the denial of any one claim results in the plaintiff not getting the relief to which it claims to be entitled, whether in the amount or in the quality of the judgment, it has a right to be heard on appeal.

Were then the findings leading to the conclusion that Cunningham's representations were not fraudulent clearly erroneous? Rule 52(a), F.R.C.P.

The financial statement submitted to Aetna showed under the heading of "Surplus and Undivided Profits" a net worth for Cunningham of $109,723.08 as of December 31, 1948, while his books as of that date reflected a net worth of only $64,304.60. His accountant witness, in an effort to reconcile the two figures, included a number of assets of a personal character plus a sum not carried on Cunningham's books, but listed on the statement as "Earned Estimates and Retainage on uncompleted contracts shown by Engineers' or Architects' Estimates (as per Schedule `D') $32,306.00." (Emphasis supplied.) Actually, this $32,306.00 was a mere estimate by Cunningham's superintendent (who was an engineer) of profits earned, and was not shown by the...