Cross v. Williams
| Decision Date | 31 October 1880 |
| Citation | 72 Mo. 577 |
| Parties | CROSS v. WILLIAMS, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Cape Girardeau Court of Common Pleas.--HON. H. G. WILSON, Judge.
AFFIRMED.
Wilson Cramer for appellant.
If the supposed contract was made to the sureties jointly, it was necessary for all to join in the suit; one alone could not sue. Welles v Gaty, 9 Mo. 565; Robbins v. Ayres, 10 Mo. 538; Clark v. Cable, 21 Mo. 223; Dewey v. Carey, 60 Mo. 224.
In the year 1866, William H. Hamilton was appointed United States Revenue Collector for the second district of Missouri, and was required, as such, to give bond in the sum of $50,000, for the faithful discharge of his duties. Hamilton executed the bond with James Conran, John Beardslee, J. C. Ranney, William Cross, (the plaintiff in this suit,) and H. H. M. Williams, (the defendant,) as his sureties. For some alleged default on the part of Hamilton, suit was brought upon the bond against him and his sureties, and judgment was obtained for the sum of $3,400. An execution was issued, and, Conran being dead, and Beardslee and Ranney insolvent, the amount of the judgment was collected from Cross and Williams, each paying $1,700.
This suit is now brought by Cross against Williams to recover the $1,700, which Cross was compelled to pay, as stated, and the alleged ground of recovery is, that at the time of the execution of the official bond of Hamilton, Williams, in consideration of $1,000 to be paid to him annually by Hamilton, had agreed, in writing, to save and keep harmless the other sureties from loss by reason of their suretyship. The petition alleged that this agreement in writing was lost or destroyed or in defendant's possession. Upon the trial plaintiff obtained judgment for $1,754, from which defendant has appealed, and assigns as chief grounds of error, the action of the court in receiving and rejecting evidence, and in giving on behalf of plaintiff the following instruction, viz: “The court instructs the jury that, if you are satisfied from the evidence in this case that the defendant, Williams, agreed in writing with his co-sureties, Cross, Beardslee, Conran and Ranney on the bond of Hamilton as United States Collector, to hold them harmless from any loss that might be occasioned by the default of Hamilton, and that the plaintiff, Cross, was compelled by reason of the default of said Hamilton, to pay any sum on said bond, you should find for the plaintiff, and assess his damages at such sum as may be established to your satisfaction, the said Cross was compelled to pay on said bond, not exceeding the amount claimed in the petition of plaintiff.”
The answer of defendant admits the execution of the bond by Hamilton and also by himself and the other securities named in the petition, admits the death of Conran, one of the sureties, and the insolvency of the other two, Beardslee and Ranney, admits that plaintiff was compelled as surety to pay the sum of $1,700, as charged in the petition, but denies that defendant made an agreement in writing whereby he bound himself to indemnify or save harmless plaintiff and his co-sureties from loss incurred by reason of their suretyship.
On the trial plaintiff introduced a witness, who, after stating that an agreement in writing had been signed by defendant, was asked to state its contents. This was objected to by defendant, on the ground that the petition alleged that the writing was either lost or in the possession of defendant, and that, before the contents could be proved, its loss must be shown and notice given to defendant to produce it. The objection was overruled on the promise of plaintiff to prove the loss of the writing during the trial. While the rule is well established that before the contents of an alleged lost writing can be shown, its loss must be established to the satisfaction of the court; yet, when the evidence as to its contents is first received and satisfactory proof made of its loss afterward, the mere fact of reversing the order for the introduction of evidence cannot be considered as reversible error, especially when the evidence, as in the present case, as to the loss of the writing, is full and satisfactory. State v. Linney, 52 Mo. 4
Notice to defendant to produce the writing was unnecessary. The petition alleged that it was lost or in the possession of defendant, and from the very nature of the proceeding defendant was notified that he was charged...
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