American Credit Indem. Co. v. Athens Woolen Mills

• Decision Date: 07 March 1899
• Docket Number: 629.
• Citation: 92 F. 581
• Parties: AMERICAN CREDIT INDEMNITY CO. v. ATHENS WOOLEN MILLS.
• Court: U.S. Court of Appeals — Sixth Circuit

92 F. 581

AMERICAN CREDIT INDEMNITY CO. v. ATHENS WOOLEN MILLS.

No. 629.

United States Court of Appeals, Sixth Circuit.

March 7, 1899

J. B Sizer, for plaintiff in error.

F. H Mansfield, for defendant in error.

Before TAFT and LURTON, Circuit Judges, and SEVERENS, District Judge.

TAFT Circuit Judge.

This was a bill of complaint filed in the chancery court of McMinn county, Tenn., by the Athens Woolen Mill, a corporation organized under the laws of Tennessee, against the American Credit Indemnity Company, organized under the laws of Missouri, to recover an amount alleged to be due under a policy of credit insurance, or, as it is called by the company issuing it, 'a bond of indemnity.' The cause was removed, on the ground of diversity of citizenship, to the court below, and was placed upon the law docket, a jury was waived in writing, and the cause was submitted to the court, which entered the following judgment:

'This cause was heard before the Honorable C. D. Clark, judge etc., without the intervention of a jury, a jury having been waived by stipulation in writing, signed by plaintiff and defendant; and the court having heard the evidence and argument of counsel, finds the issues joined in favor of the plaintiff, and that the defendant is justly indebted to plaintiff, principal and interest to the present date, in the sum of three thousand one hundred and thirty-eight dollars and eight cents. It is therefore adjudged by the court that Athens Woolen Mill recover of American Credit Indemnity Company said sum of three thousand one hundred and thirty-eight dollars and eight cents ($3,138.08), together with all the costs of this cause, for both of which execution will issue. To which action of the court in finding the issue in favor of the plaintiff, and rendering judgment against the defendant, the defendant excepts; and thereupon the defendant moved for a new trial, which motion, being considered by the court, is overruled, and defendant excepts.'

No exceptions to the rulings of the court upon which errors have been assigned were taken in the progress of the trial.

It is well settled that where, in an action at law, issues which present mixed questions of law and fact are submitted to a circuit court of the United States, and are tried by it without a jury, under the provisions of section 649 of the Revised Statutes, and the court makes a general finding, nothing is open to review in the appellate court except the rulings of the circuit court in the progress of the trial, and such rulings do not include the general finding of the circuit court. Insurance Co. v. Hamilton, 22 U.S.App. 386, 11 C.C.A. 42, and 63 F. 93. In such a cause, however, it is not too late to allege as error in the circuit court of appeals a material defect apparent on the record proper, which would have been fatal upon a motion in arrest of judgment after verdict; but only such material defects, and not the evidence, may be reviewed. Id., 22 U.S.App. 548, 11 C.C.A. 42, and 63 F. 93.

The only ground, then, which the plaintiff in error can urge for reversal, is that the judgment was erroneous upon the face of the pleadings. These were the bill, the answer, and the replication, which, though in name and form pleadings in chancery, were in fact, by the order transferring them to the law docket, treated as common-law pleadings. The replication, being according to the form of equity, was one denying all facts averred in the answer, except such as were averred or admitted in the bill. In support of the judgment, it is to be presumed that all the averments of the bill were proven, and that all the averments of the answer not admitted by the bill were disproven. The burden is on the plaintiff in error in this case to show that, upon the face of complainant's bill, the judgment entered was erroneous.

The bill avers that on November 23, 1893, in consideration of $145, the defendant company issued to complainant its bond of indemnity No. 1,540, guarantying complainant against loss to the extent of not exceeding $5,000, 'resulting from insolvency of debtors, as thereinafter defined,' over and above a net loss of $1,125 first to be borne by complainant on total gross sales of $125,000, to be made between the 1st of January, 1894, and December 31, 1894; that, by the terms of the bond, it expired on December 31, 1894; that, by clause 8 of its conditions, it was provided that 'no loss can be proven after the expiration, provided, however, that, in case this bond is renewed, and the premium on such renewal is paid at or before the expiration of this bond, loss resulting after such date of expiration, on shipments made during the term of this bond, may be proven during the term of the renewal bond next immediately succeeding'; that by clause 11 it was stipulated that 'the term 'insolvency of debtors,' wherever used in this bond, is agreed to be general assignments of, or attachments against, insolvent debtors, the absconding of debtors, or executions in favor of the indemnified returned unsatisfied during the term of the bond, or the renewal thereof, as aforesaid.' Complainant further averred that it sold and delivered a large amount of goods to Waxelbaum & Son, a business firm in Macon, Ga., during the life of bond No. 1,540; that, before the expiration of the bond, complainant renewed it, paying the required premium, and received bond No. 2,443 in renewal; that in nearly all respects this bond was like the old; that its eighth condition was:

'In case this bond is renewed, and the premium on such renewal is paid, at or before the expiration of this bond, loss resulting after said date of expiration, upon shipments made during the term of the bond, may be

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