John A. Tolman Company v. Hunter
| Decision Date | 26 June 1905 |
| Citation | 88 S.W. 636,113 Mo.App. 671 |
| Parties | JOHN A. TOLMAN COMPANY, Appellant, v. HARRY L. HUNTER et al., Respondents |
| Court | Kansas Court of Appeals |
Appeal from Henry Circuit Court.--Hon. W. W. Graves, Judge.
AFFIRMED.
Judgment affirmed.
Lindsay & Hinkle for appellant.
(1) The appellate court will set aside a verdict, which is without substantial evidence to support it, or which is manifestly the result of prejudice or passion. Acklin v Staehlin, 56 Mo. 558; Long v. Moon, 107 Mo 334; Hewitt v. Steele, 136 Mo. 327; Oglesby v Railroad, 177 Mo. 272; Curtiss v. Driggs, 25 Mo.App. 175; Bank v. Lawson, 87 Mo.App. 42; Roman v. Trading Co., 87 Mo.App. 186; Gage v. Trawick, 94 Mo.App. 307. (2) A change of the terms of a contract will not release the surety or guarantor of such contract from liability, for acts done prior to such change, provided such prior acts are distinct and separable from those done subsequent to the change. State ex rel. Drach v. Chaeney, 52 Mo.App. 258; Bank v. Traube, 75 Mo. 199; School District v. Livers, 147 Mo. 580; Kansas City v. McGovern, 78 Mo.App. 513; Bank v. Owen, 101 Mo. 558, 579, 580; 2 Brandt on Suretyship and Guaranty, (2 Ed.), sec. 389, 392, 393, 394 and 395 and notes. (3) A verdict for the defendant will be set aside, where the admitted facts entitle the plaintiff to a judgment for any sum, however small. Curtis v. Driggs, 25 Mo.App. 175. (4) The chief reason why appellate courts defer to the finding of facts made by lower courts and by juries, is the fact that the lower court and the jury saw the witnesses and had an opportunity to observe their manner of testifying, and their demeanor on the witness stand, having thus a signal advantage over the appellate court. Jenks v. Glenn, 86 Mo.App. 329; Halstead v. Mustion, 166 Mo. 495. But the jury and the circuit judge had no such advantage in this case, for the purpose of arriving at their respective conclusions, over this court.
C. A. Calvird and Peyton A. Parks for respondents.
(1) Guarantors are either bound in toto or not at all. If a material alteration is made in the contract without the surety's consent he is discharged, even though the alteration be for his benefit. 2 Brandt on Suretyship & Guaranty (2 Ed.), sec. 388; Warden v. Ryan, 37 Mo.App. 467. (2) Any change in a contract made after a surety signs it, or signs a bond for a faithful compliance with the contract, will release the surety, and this, also, whether it be detrimental or beneficial to the surety, if the change be made without his consent. The liability of a surety is not to be extended by implication beyond the strict terms of the contract. To the extent and in the manner and under the circumstances pointed out in his obligation, he is bound and no further. Leavel v. Porter, 52 Mo.App. 640.
This is an action on a contract of guaranty. The judgment in the trial court was for the defendants. It appears that plaintiffs made a contract of employment of one Cary E. Hunter as "a traveling salesman and otherwise." That he was to collect money for them in the territory over which he traveled. That he would repay to plaintiffs whatever money they might advance to him. That he was to be paid a commission on his sales and was to bear his own expenses. After a period of near one year he quit the service in debt to plaintiffs seven hundred and forty dollars.
The answer contained two defenses: first, that plaintiffs got Hunter to enter their service by false and fraudulent representations; and, second, that plaintiffs and Hunter changed the terms of the contract between them in a material respect without the consent or knowledge of defendants, guarantors. The first defense was peremptorily taken out of the case by the trial court, and the second was submitted to the jury by proper instructions.
1. The plaintiffs assign two principal causes for reversal of the judgment: First, that there is no evidence to sustain the defense of a change in the contract and thereby, they contend, the verdict has no support. We have gone over the evidence and find that if that given in support of the allegation of a change is to be believed, there was abundant support for the verdict. Whether it was evidence worthy of belief is not for us to say, since, under our system, that is a matter exclusively for the jury.
2. But the principal evidence in the cause was given by deposition and since the jury had no opportunity for seeing and hearing the witnesses, and had no means of observing their conduct and manner while testifying, plaintiffs claim that the rule permitting a jury to judge of the evidence and its weight...
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