J. R. Watkins Medical Company v. Warren

• Decision Date: 21 November 1921
• Docket Number: 252
• Citation: 234 S.W. 618,150 Ark. 542
• Parties: J. R. WATKINS MEDICAL COMPANY v. WARREN
• Court: Arkansas Supreme Court

234 S.W. 618

150 Ark. 542

J. R. WATKINS MEDICAL COMPANY v. WARREN

No. 252

Supreme Court of Arkansas

November 21, 1921

Appeal from Conway Circuit Court; A. B. Priddy, Judge; reversed in part.

Judgment reversed and cause remanded.

Strait & Strait, for appellant.

The court erred in taking from the consideration of the jury the question of the liability of Hall on the bond. He was notified by letter of the fact that he was named as surety on the bond of Montgomery, and he took no steps to advise appellant of the forgery, and by his conduct which amounted to acquiescence, has rendered himself liable. 50 Ark. 458; 85 Ark. 156; 83 Ark. 444; 101 Ark. 145.

Regardless of the liability of Hall, Warren is liable on his signature (140 Ark. 491) unless he signed conditioned that certain persons would be procured as sureties, and that this fact was known to the payee at the time he accepted the contract. Wheeler v. Traders' Deposit Bank, 49 L. R. A 315; 3 Ohio St. 302; 113 Ind. 365; 71 Iowa 675; 73 Ind. 325; 85 Ill. 218; 7 Ind.App. 381, and other cases cited in note to case of Wheeler v. Traders' Bank.

J Allen Eades, for appellee Hall.

The contention made by appellant as to the liability of Hall arising from the fact that he was notified by the company of his being a surety on the bond, is raised in this court for the first time.

Hall denied the genuineness of the instrument by proper affidavit before the trial was begun (C. & M. Dig. § 4114) and appellant had no right to introduce it until its genuineness was proved. 82 Ark. 110; 35 Ark. 204; 38 Ark. 278; 49 Ark. 19. He who relies on a writing has the burden of proof as to its genuineness. 88 N.E. 178; 30 Neb. 104. This appellant failed to do.

Edward Gordon, for appellee Warren.

The contract in this case is one of guaranty and not suretyship. For the distinction between the two see Brandt on Suretyship & Guaranty, Sec. 1; 34 F. 104. 4 W.Va. 29; 7 Metc. 518. Montgomery, not being a party to the contract of guaranty, was the agent of appellant in procuring the signature of Warren (111 Ark. 436; 142 Ark. 132), and being their agent the company is bound by his misrepresentations.

The forgery of the name of Hall materially alters the contract and renders same void. 49 Ark. 48. In the absence of evidence to the contrary, the legal presumption is that the alteration was made by the party having the custody of the contract. 5 Ark. 380. Alterations by strangers also render the contract void, when made without the consent of the party whose rights are affected. 48 Am. Dec. 412; 70 Miss. 157; 31 N.J.L. 127; 47 Am. Dec. 299; 86 A. S. R. 82; 24 L. R. A. (N. S.) 1155.

The party producing a writing as genuine, which has been altered after its execution, shall account for the alteration, otherwise it cannot be introduced in evidence. 34 F. 109. The court correctly found for Warren. Alteration by one co-mortgagor after others have signed renders same void as to those who have signed. 79 Am. Dec. 506. The forging of Hall's name to the contract relieved Warren of liability.

OPINION

SMITH, J.

This is the second appeal in this case. The opinion on the former appeal is found in 140 Ark. 487. As a result of that opinion, certain issues have passed out of the case.

Appellant instituted the action to recover the sum due on a contract for the purchase price of certain articles sold and delivered to N. E. Montgomery, and against appellees, W. L. Warren and J. J. Hall, as sureties on the contract of Montgomery with appellant.

At the trial from which the first appeal was prosecuted, the court took the case from the jury as to the liability of Hall, upon the ground that he had filed an affidavit denying the execution of the instrument sued on, and no testimony was offered that he had in fact signed the obligation. We reversed that judgment because the affidavit denying the execution of the obligation was not an unqualified denial as required by the statute, but was made merely on belief. Sec. 4114, C. & M. Digest.

Upon the remand of the cause, such an affidavit as the statute required was filed, and as no evidence was offered contradicting the recitals of the affidavit denying the execution of the obligation, the court properly directed a verdict in Hall's favor. Thereupon Warren the other surety, asked that a verdict be also directed in his favor, upon the ground that the discharge of Hall operated to materially alter the obligation and to discharge him also.

This prayer was granted, and a verdict in Warren's favor was also directed, and the appellant seeks by this appeal to reverse the judgment of the court below as to both parties.

We have just said that a verdict was properly directed in Hall's favor. Must Warren be discharged from his liability on that account?

There is an interesting discussion in the brief of appellee Warren of the difference in the obligations of sureties and guarantors, and it is earnestly insisted that Warren is a guarantor, and not a surety. We dispose of this contention by saying that the obligation signed by Warren designates him as a surety, and makes him such, and required him to sign expressly as a surety.

Places were provided for the signatures and for the attestation of the signatures of the sureties. These sureties were designated first surety and second surety. Warren signed as first surety. There is no showing that he knew anything about who would be the additional surety, or whether any other person would sign as surety, except that there was a blank space for that purpose; nor was there any showing that his signature was...