Franklin v. Holliway

• Decision Date: 20 May 1918
• Docket Number: No. 12861.,12861.
• Citation: 203 S.W. 664
• Parties: FRANKLIN v. HOLLIWAY et al.
• Court: Missouri Court of Appeals

203 S.W. 664

FRANKLIN v. HOLLIWAY et al.

No. 12861.

Kansas City Court of Appeals. Missouri.

May 20, 1918.

1. APPEAL AND ERROR — INSTRUTION — EXCEPTION — REVIEW.

Where an instruction was objected to, but no exception to the court's action in overruling the objection and in giving the instruction was taken, the instruction could not be reviewed on appeal.

2. PRINCIPAL AND SURETY — ACTION ON BOND—EVIDENCE—DEMURRER.

In an action on a bond given to assignor of mail-carrying contract by assignee, conditioned to save 6 assienor harmless as to any liability to government, held that a demurrer to the evidence was properly refused.

3. PRINCIPAL AND SURETY — MAIL COTRACT — ASSIGNMENT — BOND — DEFENSE.

Regardless of the validity of the assignment of a mail-carrying contract, the government not objecting, assignee could be held liable on his bond to assignor to save him harmless from effect of breach.

4. BONDS — JUDGMENT — VALIDITY.

A judgment, in an action on a bond for amount of damages returned by the jury without judgment for penalty of the bond, is erroneous.

Appeal from Circuit Court, Osage County; A. Breuer, Judge.

"Not to be officially published."

Action by Roy G. Franklin against Charles Holliway and others. Judgment for plaintiff, and defendants appeal. Reversed, and cause remanded, with directions to enter the proper judgment.

Gove & Davidson, of Linn, and W. S. Pope, of Jefferson City, for appellants. Vosholl & Monroe, J. P. Peters, and E. M. Zeveley, all of Linn, for respondent.

ELLISON, P. J.

Plaintiff's action is based on an indemnifying bond given to plaintiff by defendant Holliway as principal and the other defendants as sureties. The judgment in the lower court was for the plaintiff.

It appears that plaintiff had a government contract for carrying the mail on route No. 45217, and that one Meamber had a like contract for carrying the mail on route No. 45216, both routes being in Osage county; that plaintiff bought Meamber's route and thereby became the owner of both routes and became obligated to carry the mail as required by his contract. Afterwards plaintiff sold both routes to defendant Holliway, and took from defendant Holliway the bond in suit, obligating himself to carry out his contract for carrying the mail and to save plaintiff harmless by reason of his obligation to the government and to Meamber that he (plaintiff) would carry the mail. No objection was made to the introduction of this bond. Each party asked our...