Fidelity & Casualty Company of New York v. Crays
| Decision Date | 09 June 1899 |
| Docket Number | 11,487 - (39) |
| Citation | 79 N.W. 531,76 Minn. 450 |
| Parties | FIDELITY & CASUALTY COMPANY OF NEW YORK v. ELVIRA E. CRAYS |
| Court | Minnesota Supreme Court |
Action in the district court for Faribault county to recover $265.-80, being the amount paid by plaintiff to the Peavey Elevator Company, defendant's employer, on account of an alleged shortage of defendant, upon a bond executed by plaintiff in favor of the Elevator Company. The case was tried before Quinn, J., who found in favor of defendant. From an order denying a motion for a new trial, plaintiff appealed. Affirmed.
Fidelity Bond -- "Shortage" -- Finding Sustained by Evidence.
In an action brought to recover money paid to the defendant's employer upon a bond by which the plaintiff obligated itself to indemnify the employer against such loss as it might sustain by reason of the fraud or dishonesty of the defendant as its buyer or receiving agent at one of its grain elevators, the alleged default of the defendant being a "shortage" in his grain account, held, that the evidence justified the trial court in finding that there was no shortage for which the plaintiff was liable to the employer on the bond.
General Finding that Allegations Are Untrue.
A general finding that each and all of the allegations of the complaint are untrue is equivalent to a special finding as to each allegation that it is untrue. Hence, if the finding is justified by the evidence as to one allegation, which, alone and independently of the others, would justify the conclusions of law in favor of the defendant, the fact that the finding as to some other allegation is unsupported by the evidence is error without prejudice.
General Finding and General Verdict.
Case distinguished from a general verdict where two issues are submitted to a jury (one erroneously), upon either of which the verdict may have been found.
Voucher Conclusive Evidence -- Fidelity & C. Co. v. Eickhoff Followed.
A stipulation between a "guaranty insurance company" and the guarantied employee that a voucher or other evidence of payment by the company to the employer shall be conclusive evidence against the employee as to the fact and extent of his liability to the company, is void, as being against public policy, in so far as it makes such voucher conclusive evidence. Following Fidelity & C. Co. v. Eickhoff, 63 Minn. 170.
Van Fossen & Frost, for appellant.
Plaintiff made out a prima facie case by introducing in evidence defendant's application for a bond, the bond, the claim of loss put in by the elevator company, and the voucher signed by it showing payment by plaintiff to it of $165.80 in settlement of defendant's shortage. Such provisions as that in the bond have been repeatedly upheld in England London v. Bailey, L.R. 3 Q.B.D. 217; Wilson v Glasgow, 5 Sc. Sess. Cas. (4th Ser.) 981; Glasgow v. Dempsey, 3 Cowp. Just. 440; Scott v. Avery, 5 H.L. Cas. 811; Brown v. Overbury, 11 Ex. 715. To the same effect are Boston v. Gray, 6 Met. (Mass.) 131, 165; Mitchell v. Kavanagh, 38 Iowa 286. Even in those courts which purport to sustain, to the fullest extent, contract provisions making certificates of certain persons conclusive evidence between the parties to an action, the decisions are, in effect, merely that such decisions of the parties are prima facie evidence of certain facts. Such decisions are final and conclusive only in the absence of fraud, gross mistake, bad faith, and failure to exercise honest judgment. See St. Paul & N.P. Ry. Co. v. Bradbury, 42 Minn. 222, 227; Kihlberg v. United States, 97 U.S. 398. The foregoing decisions throw light on the reasons which actuated the court in Fidelity & C. Co. v. Eickhoff, 63 Minn. 170, the decision in which case cannot be construed as an attempt on the part of the court to make a contract for the parties. Omitting the word "conclusive" in the stipulation in that case, the contract was valid. A contract should be supported, rather than defeated. Smith v. Packhurst, 3 Atk. 135. This rule does not require that every part be given effect. Bouvier, Law Dic. 386; Simpson v. Vaughan, 2 Atk. 32; 2 Parsons, Contr. 637. Though the provision be not sustained to the extent of holding the voucher conclusive, it may still be held to be prima facie. Hursey v. Marty, 61 Minn. 430; Beuchaine v. McKinnon, 55 Minn. 318; Schmitt v. Common Council, 111 Mich. 99.
Andrew C. Dunn, for respondent.
E.W. Crays was the original defendant in this action. He subsequently died, and the administratrix of his estate was substituted in his place, but for convenience we shall refer to the deceased as the defendant. The plaintiff is what is termed a "guaranty insurance company," engaged in the business of guarantying employers against the fraud or dishonesty of their employees. This action was brought to recover money alleged to have been paid to the Peavey Elevator Company, defendant's employer, upon a bond by which the plaintiff obligated itself to make good and reimburse to the elevator company such loss as it might sustain by reason of the fraud or dishonesty of the defendant as its receiving agent and buyer of grain at one of its grain elevators for the year commencing August 15, 1893. The bond is set out in the complaint, and is identical in its terms and conditions with the one considered in Fidelity & C. Co. v. Eickhoff, 63 Minn. 170, 65 N.W. 351, and the complaint is, mutatis mutandis, substantially the same. Defendant's answer was a denial of all the allegations of the complaint except that he acted as the agent of the Peavey Elevator Company in the purchase of grain at one of its elevators from September 10, 1893, to May 1, 1894, and contained an allegation that he had delivered and turned over to it all the grain which he had purchased or received for it. The finding of the court was that each and all of the allegations of the complaint (except as to the corporate capacity of the plaintiff and the Peavey Elevator Company) were untrue.
This general finding amounts, of course, to findings that the defendant never requested the plaintiff to execute a bond "in the form and of the kind" set up in the complaint, and that there was no shortage or default on part of the defendant for which the plaintiff was liable on its bond. The plaintiff challenges these findings as not being supported by the evidence. Its counsel take the further position that, if any one of the findings on any issuable fact included in this general finding is not justified by the evidence, a new trial must necessarily follow, inasmuch as we cannot tell but that the court rested the decision of the whole case upon the erroneous finding. In this counsel have been led into error by assuming that the case is analogous to a general verdict where two independent questions have been submitted to the jury (one erroneously) upon either of which the verdict may have been found, as in Peterson v. Chicago, M. & St. P. Ry. Co., 36 Minn. 399, 31 N.W. 515. A general finding that each and all of the allegations of the complaint are untrue is the equivalent of specific findings that each allegation is untrue. Hence, if the finding as to any one issue, which, alone and of itself, will support the conclusions of law, is...
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