Am. Sur. Co. of N.Y. v. Steen

• Decision Date: 20 June 1922
• Docket Number: Case Number: 10469
• Citation: 208 P. 212,86 Okla. 252,1922 OK 212
• Parties: AMERICAN SURETY CO. OF NEW YORK v. STEEN.
• Court: Oklahoma Supreme Court

1922 OK 212

208 P. 212

86 Okla. 252

AMERICAN SURETY CO. OF NEW YORK v. STEEN.

Case Number: 10469

Supreme Court of Oklahoma

Decided: June 20, 1922

Syllabus

¶0 1. Payment--Voluntary Payment--Effect--Right to Recover Money Paid.

Money voluntarily paid, with full knowledge of facts under which it was demanded, cannot be recovered back upon the ground that payment was made under a misapprehension of the legal rights and obligations of the party paying.

2.Principal and Surety--Extent of Surety's Liability--Bond of Dealers in Nursery Stock.

Section 16, c. 279, Session Laws 1915, provides that: "Dealers selling nursery stock should furnish a bond to be approved by the Board of Agriculture conditioned that they will buy and sell only stock which has been duly inspected and certified by an official State Inspector; and that he will maintain with the board a list of all sources from which he secures his stock." Bond given under said act conditioned that the principal should faithfully obey the provisions of said act and the laws of the state of Oklahoma, and the rules and regulations of the Board of Agriculture, being broader than the terms of the act, is limited in its liability to the condition required by law, and the surety is not liable thereon for alleged misrepresentations made by the principal in selling fruit trees.

3. Same--Parties Entitled to Sue on Bond.

The bond on which the plaintiff seeks to recover in this cause being a statutory bond in which the state is named as obligee, and it appearing that the bond was not made for the benefit of any other person, and there being no statutory provision authorizing an action on the bond except by the state, held, that the plaintiff, a person other than the obligee in the bond, is unauthorized to maintain the action.

Error from District Court, Kingfisher County; James B. Cullison, Judge.

Action by W. E. Steen against the American Surety Company of New York. Judgment for plaintiff, and defendant brings error. Reversed and remanded.

F. L. Boynton, for plaintiff in error.

George L. Bowman, for defendant in error.

KENNAMER, J.

¶1 The American Surety Company of New York prosecutes this appeal to reverse the judgment of the district court of Kingfisher county rendered in favor of W. E. Steen to recover the sum of $ 136.25. The material facts to be considered for the purpose of this appeal are substantially as follows: About the first day of October, 1917, W. E. Steen gave an order to B. E. Fields & Son, engaged in the general nursery business at Fremont, Neb., for 500 "Delicious" apple trees. Pursuant to the order, B. E. Fields & Son shipped to Kingfisher, Okla., for the purchaser, W. E. Steen, 500 apple trees, which Steen alleged in his petition filed in this action were inferior in quality to the trees ordered, and were not "Delicious" apple trees, but "Baldwin" trees. Steen executed to Fields & Son his note in the sum of $ 125 in payment for the trees. Steen alleged that he was entitled to a return of the note executed as payment of the purchase price of the trees, or, in case return could not be had, the amount of the money due on the note, and to $ 500 damages on account of the misrepresentation and fraud of Fields & Son in the sale of the trees. B. E. Fields & Son, on the 15th day of July, 1915, had executed to the state of Oklahoma a bond in the sum of $ 1,000, conditioned that B. E. Fields & Son had been granted a license by the State Board of Agriculture of the state of Oklahoma authorizing Fields & Son to engage in the business of selling nursery stock in the state of Oklahoma in accordance with the act of the Legislature approved March 31, 1915, and to faithfully obey the provisions of said act and laws of the state of Oklahoma. The American Surety Company signed the bond as surety for Fields & Son. Steen, by this action, seeks to hold the American Surety Company liable by reason of the alleged fraud in securing the order for the apple trees and the note in settlement of purchase price therefor. Fields & Son were made a party defendant in the petition filed with the American Surety Company, but were never served with summons. The trial court instructed a verdict in favor of Steen, the plaintiff in the action.

¶2 The American Surety Company, by its assignments of error, alleges error of the trial court in overruling its demurrer to the plaintiff's petition and error of the court in overruling its demurrer to the plaintiff's evidence. It appears from the record, after the institution of the action by Steen, he voluntarily paid the note executed in satisfaction of the purchase price for the fruit trees. Steen will be referred to as he appeared in the trial court, as plaintiff; the American Surety Company, as defendant. Counsel for the defendant relies upon two grounds for the reversal of the judgment of the trial court: First, the payment of the note having been made with full knowledge of all of the facts which constituted a defense to the payment of the note, which payment was voluntary, precludes the plaintiff from recovering in the action. Second, that under the provisions of the act of the Legislature approved March 31, 1915, c. 279, Session Laws 1915, the plaintiff has no cause of action against the defendant upon the bond executed by the defendant surety company.

¶3 Upon a careful review of the record and the admitted facts, we are clearly of the opinion that both contentions of the defendant are well taken. The evidence of the plaintiff in the action unquestionably shows that he voluntarily, with full knowledge of all of the facts, in absence of fraud, duress, or mistake, paid the note executed by him in settlement of the purchase price for the fruit trees subsequent to the commencement of this action. The recovery in this case was only for the amount of the note paid by the plaintiff; the claim for $ 500 damages having been abandoned. The rule of law uniformly adhered to by the courts is that money voluntarily paid under a claim of right to payment, with full knowledge of all of the facts which would entitle the payor to relief against the payment of the claim, cannot be recovered on the ground that the claim was illegal. Elston v. City of Chicago (Ill.) 89 Am. Dec. 361; Brumagim v. Tillinghast (Cal.) 79 Am. Dec. 176; Clarke v. Dutcher, 9 Cow. (N. Y.) 674; Kenneth & Gibson v. South Carolina Railroad Co. (S. C.) 98 Am. Dec. 382; Lester v. Mayor of Baltimore (Md.) 96 Am. Dec. 542; Commissioners,...