Bray v. Culp
| Decision Date | 28 February 1920 |
| Parties | W. G. BRAY, Respondent, v. TILDA CULP, Widow of H. P. CULP, Deceased, OTTO CULP and URSEL CULP, Children of H. P. CULP, Appellants |
| Court | Missouri Court of Appeals |
Appeal from Circuit Court of Dunklin County.--Hon. H. B. Pankey Special Judge.
AFFIRMED.
Judgment affirmed.
Orville Zimmerman for appellants.
John T McKay and L. R. Jones for respondent.
Bradley, J., not sitting.
This is a suit on the following written instrument, denominated a bond: It is signed by Mary Champ and H. A. Culp. The defendants are heirs of said H. A. Culp, it being alleged that said Culp died leaving a considerable estate which descended to said defendants.
A literal reading of this obligation is that the obligors will owe W. G. Bray, this plaintiff, one thousand dollars if Champ and Holt do not appear in court according to their appearance bond; but when read in the light of the circumstances under which and of the purpose for which given, it must mean that the obligation will be void if said persons appear in court as required. Nor does this instrument evidence a mere bet or wager on the appearance or non-appearance of the parties named. This much is conceded.
The only defense urged in this court is the statute of limitations and that in turn depends on when plaintiff's cause of action accrued--whether on the failure of the persons named to appear in court or when plaintiff the obligee, lost or became liable for something by reason of such failure. The trial court took the latter view of the obligation, held that the case was not barred by the statute and in doing so defendants claim erred "in holding the bond sued on to be an indemnifying bond instead of a bond with affirmative covenants to do certain things."
The material facts bearing on the controversy are that the persons mentioned in this obligation, Champ and Holt, were arrested and committed to jail in New Madrid County to await trial on a charge of grand larceny. The bail bond of each was fixed at $ 500. The plaintiff, Bray, in order to have said parties released on bail procured Lee Hunter and J. A. Cresap to sign the bail bond. To do this plaintiff, and certain sureties, executed a bond in the sum of one thousand dollars to indemnify and save harmless the said Hunter and Cresap by reason of signing the bail bonds of Holt and Champ. Plaintiff at the same time took the obligation now in suit for his protection. The persons signing the present obligation, H. A. Culp and Mary Champ, were relatives of the prisoners Holt and Champ and were the moving cause in procuring the bail for them. Plaintiff was acting for them in procuring the bail bond in the manner stated and relied on the instrument sued on for his protection in agreeing to indemnify the persons he induced to sign the bail bonds.
Holt failed to appear for trial and his default was entered at the September term, 1908, of the New Madrid Circuit Court; a forfeiture was taken on his recognizance and scire facias issued to his bondsmen, Hunter and Cresap. Such proceedings were then had that judgment was rendered at the March term, 1909, on that bail bond for $ 500 and costs against the sureties, Hunter and Cresap. H. A. Culp was then present and, recognizing his ultimate liability, insisted that the validity of the bail bond be further contested by appeal and at his instance the case was appealed and the validity of the bail bond and the liability of the sureties were finally adjudged by the Supreme Court in May, 1911, in State v. Holt, 234 Mo. 598, 137 S.W. 877. Thereupon this plaintiff, recognizing his liability to the sureties on the bail bond, paid to them the amount of the judgment on that bond and said sureties paid and discharged said judgment. H. A. Culp had died May 23, 1909, pending the appeal to the Supreme Court and shortly after such appeal was taken. Administration was then had on his estate.
Both parties agree that the instrument sued on must be read and interpreted in the light of the circumstances under which it was given and be so interpreted as to accomplish its purpose. The intention of the parties gathered from such circumstances and their own acts in carrying out the agreement is of prime importance in determining the true import of the writing. [Coal & Iron Co. v. Coal Co., 176 Mo.App. 407, 158 S.W. 420.]
When, then, did the parties intend that an obligation should arise on the part of the persons signing this instrument to pay this plaintiff any amount thereunder? The argument on behalf of defendants is that the bond in question is more than an indemnifying bond; that it is one with an affirmative undertaking that the prisoners named would abide by the conditions of this appearance bond and would appear for trial at the September term of Court 1908; that when a bond contains affirmative covenants to do certain things the obligee has a cause of action as soon as there is a breach of the covenant; that a cause of action accrued to plaintiff when Holt failed to appear at the September term of court in 1908, (or perhaps when judgment was rendered in the circuit court on the bail bond in March, 1909); that said cause of action accrued in the lifetime of H. A. Culp and could and should have been presented against his estate within two years after the grant of administration thereon in June, 1909; that as this was not done, the first suit on this claim having been brought in September, 1911, the claim is barred under section 191, Revised Statutes 1909.
The defendants' premises are correct, but their conclusion is wrong. The cases cited by defendants support the proposition that where a bond is conditioned on affirmative covenants to do certain things, the failure to do which subjects the obligee to liability or the doing of which would relieve him from liability, then the bond is not merely one of indemnity for a loss paid but a cause of action accrues on the failure to do the thing covenanted. [Salmon Falls Bank v Leyser, 116 Mo. 51, 22 S.W. 504; Ham v. Hill, 29 Mo. 275; Rowsey v. Lynch, 61 Mo. 560; Nowell v. Mode, 132 Mo.App. 232, 111 S.W. 641; Delmar Inv. Co. v. Lewis, 271 Mo. 317, 196 S.W. 1137; Loewenthal v. McElroy, 181 Mo.App. 399, 405, 168 S.W. 813.] Thus in Ham v. Hill, supra, a bond was given to a retiring partner conditioned that the other partner would pay all the firm debts when due. It was held that a failure to pay a firm...
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