Bort v. E. H. McCutchen & Co.
| Decision Date | 08 May 1911 |
| Docket Number | 3,304. |
| Citation | 187 F. 798 |
| Parties | BORT v. E. H. McCUTCHEN & CO. et al. |
| Court | U.S. Court of Appeals — Eighth Circuit |
John H Atwood (Craig T. Wright, A. F. Call, F. W. Sargent, and Thos M. Murphy, on the brief), for plaintiff in error.
Will E Johnston and E. A. Burgess (E. H. Hubbard, on the brief), for defendants in error.
Before SANBORN and VAN DEVANTER, Circuit Judges.
A. N Bort, the obligee in a bond, brought an action against the principal and sureties therein to recover about $100,000 and interest for a breach of its condition. The sureties pleaded many defenses, but the only one submitted to the jury was that they were induced to sign the bond by the promise of E. H. McCutchen, the principal, that others would sign it and that he would not deliver it until they did, that McCutchen broke this promise and delivered the bond without the promised signatures, and that Bort was aware of these facts before he accepted the bond. There was a verdict and judgment for the sureties, which the writ in this case was sued out to reverse.
The first specification of error is that the court refused to instruct the jury to return a verdict against the sureties, and it rests upon two contentions: That there was no competent substantial evidence to support their defense, and that by division 13 of their answer they admitted that Bort accepted the bond without notice that the sureties had been induced to sign it by the promise that others who never signed it would sign as their cosureties before it was delivered. The latter contention was never presented to or ruled upon by the trial court. A writ of error presents for review nothing but the alleged errors of law into which the court below has fallen. As this contention was never presented to or ruled by that court, it did not commit any error concerning it, and there is nothing in relation to it before us for consideration or decision.
Moreover the plaintiff tried the case below upon the inconsistent theory that the knowledge of Bort was the real issue in the case and that this issue was determinable by the evidence, and he is thereby estopped from reversing the judgment on the ground that this knowledge was not in issue at all. There was a strong preponderance of evidence that McCutchen promised many of the sureties when they signed the bond that others, who never signed, should sign it as cosureties, and that it would not be delivered until they so signed. But the proof that Bort was aware of this fact was far from conclusive. Nevertheless a perusal of the record and a careful digest of all the evidence on this subject has disclosed so much testimony that was competent and substantial that it was not the...
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