Jones v. Grady
| Decision Date | 25 April 1936 |
| Docket Number | 6368 |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Where an appeal is taken under section 7846, Comp.Laws 1913 Laws 1933, c. 208, and the appellant specifies the questions of fact that he desires the Supreme Court to review, the review is limited to the questions thus specified, and the respondent, not having perfected a cross-appeal, cannot have a trial de novo.
2. The record is examined, and it is held, that the trial court's finding with respect to the contract actually entered into by the plaintiffs and defendants is correct.
3. The record is examined, and it is held, for reasons stated in the opinion, that a certified transcript of the judgment roll in an action brought in the district court of the state of Minnesota was properly received in evidence for the purpose of showing the entry of judgment in said action.
4. A contract to indemnify against liability is breached and a cause of action arises thereon when the liability is established, though the indemnified parties have paid no money or suffered no pecuniary detriment by reason of such liability.
5. Under section 106, General Statutes of Minnesota 1923, where the state has a deposit in an insolvent bank secured by surety bond, it is a preferred creditor of the bank and may proceed as such against the assets of the bank or against the sureties on the bond, or against both; but the purpose and effect of the statute is to defeat the sureties' right of subrogation and not to enable the state to realize both from the assets of the bank and from the sureties.
Appeal from District Court, Cass County; M. J. Englert, Judge.
Action by David C. Jones and others, and all others who were stockholders of the Farmers & Merchants State Bank of Ada Minn., prior to April 7, 1926, against James Grady and another. Judgment for plaintiffs, and defendants appeal.
Judgment modified and, as modified, affirmed.
Shure & Murphy, for appellants.
In the absence of fraud, artifice or design each party is bound by his execution of their written instruments. Little v Little, 2 N.D. 175, 49 N.W. 736; Rokusek v. Nation Union F. Ins. Co. 50 N.D. 123, 195 N.W. 300; Bank v. Shea, 50 N.D. 455, 196 N.W. 307; 13 C.J. 370.
The judgment book is the best evidence of a judgment. In re Weber, 4 N.D. 119, 59 N.W. 523, 28 L.R.A. 621; Cameron v. G.N.R. Co. 8 N.D. 125, 77 N.W. 1016; McTavish v. R. Co. 8 N.D. 333, 79 N.W. 443.
A domestic judgment book must be established by a judgment book. Anderson v. Wilson, 11 N.D. 193, 91 N.W. 37; Yokell v. Elder, 20 N.D. 142, 127 N.W. 514.
J. E. Hendrickson, C. G. Dosland, and Brattland & Brattland, for respondent.
A beneficiary who furnishes the consideration may enforce the contract. 6 R.C.L. 882; Maxfield v. Schwartz, 43 Minn. 321, 45 N.W. 429, 10 L.R.A. 606.
When one makes a promise to another for the benefit of a third person, such third person may maintain an action upon the promise, even though the consideration does not run directly from him, and even though at the time he knew nothing of the promise to pay him. McDonald v. Finseth, 32 N.D. 400, 155 N.W. 863, L.R.A.1916D, 149.
Parties to a contract are liable according to the form in which they respectively execute the contract. One party may be liable in assumpsit, while the other is liable in covenant. 6 R.C.L. 1033, § 390; Hirshfield v. Fitzgerald, 157 N.Y. 166, 46 L.R.A. 839.
Where a contract is not for personal services, or does not require the imposing of special confidence, and does not fix a limit of its duration it cannot be regarded as terminable except by mutual consent. 13 C.J. 604, § 630; McKell v. Chesapeake etc. R.R. Co. 175 F. 321, 20 Ann. Cas. 1097; Pittsburgh etc. R. Co. v. Peno, 123 Ill. 273, 14 N.E. 195.
Whether a contract of indemnity is one of indemnity against liability, as contra-distinguished from indemnity against mere loss or damage, depends upon the true intent and meaning of the covenant. Stuart v. Carter, 79 W.Va. 92, 90 S.E. 53, L.R.A.1918D, 1070.
Where the obligation of the surety is to hold the obligee harmless, a judgment obtained against the latter as to matters covered in the bond would be evidence of a default, whether any steps had been taken to enforce the collection or not. Childs, Suretyship & Guaranty, 1st ed. 276.
As a general rule, sureties are not liable to the creditor or obligee until he has suffered an actual loss, but the contract may be worded so as to make the surety liable before the creditor or obligee has been compelled to pay anything. Bridgeport F. & M. Ins. Co. v. Wilson, 34 N.Y. 275.
One of two makers of a promissory note, who gives his personal note to the payee upon the maturity of the note, and the same is accepted as payment of it and it is thereupon surrendered and discharged, may maintain an action for contribution against his co-maker. Larson v. Slettee, 152 Minn. 267, 146 N.W. 1094; Stephens v. Penn. Casualty Co. 135 Mich. 189, 97 N.W. 686, 3 Ann. Cas. 478; 16 Am. & Eng. Enc. Law, 2d ed. 178; Pickett v. Fidelity etc. Co. 60 S.C. 477; Fenton v. Fidelity etc. Co. 36 Or. 283; Anoka Lumber Co. v. Fidelity etc. Co. 63 Minn. 286; McBeth v. McIntyre, 57 Cal. 49.
Where the agreement is to indemnify against debt or damage, the indemnitee has a right to recover when judgment has been rendered against him, although he has not satisfied such judgment. Carman v. Noble, 9 Pa. 366; Jones v. Childs, 8 Nev. 121; New England Equitable Ins. Co. v. Boldrick, 192 Iowa 763, 185 N.W. 468; Maloney v. Nelson, 144 N.Y. 182, 39 N.E. 82; Cousins v. Paxton, 122 Iowa 465, 98 N.W. 277; Wilson v. Smith, 23 Iowa 252.
On the sale of personal property, a warranty of its quality is not a separate and independent contract but one of the terms of sale. Thompson v. Libby, 34 Minn. 374; McNaughton v. Wahl, 99 Minn. 92, 108 N.W. 467.
If a written contract is not complete, that is, if it does not express the entire contractual assent of the parties, the omitted portions may be proved by parol. Cargill Commission Co. v. Swartwood, 159 Minn. 1, 198 N.W. 536; Virginia & R. Lake Co. v. Helmer, 140 Minn. 135, 167 N.W. 355; Healey v. Young, 21 Minn. 389; Thompson v. Libby, 34 Minn. 374, 26 N.W. 1; Jones v. Alley, 17 Minn. 269; Keck v. Kavanaugh, 45 N.D. 81, 177 N.W. 99; Putnam v. Prouty, 24 N.D. 517, 140 N.W. 93; Plano Mfg. Co. v. Root, 3 N.D. 165, 54 N.W. 924; Reeves & Co. v. Bruening, 13 N.D. 157, 100 N.W. 241; Sargent v. Cooley, 12 N.D. 1, 94 N.W. 276; Merchants State Bank v. Ruettell, 12 N.D. 519, 97 N.W. 853; Johnson v. Kindred State Bank, 12 N.D. 336, 96 N.W. 588.
This action was brought to recover damages for breach of contract. Plaintiffs, in their complaint, set out the written contract on which they predicated their cause of action, alleged its breach and their damage in several respects, and claimed a recovery in a large amount. (See 62 N.D. 312, 243 N.W. 743, where the sufficiency of the complaint was passed upon.) Defendants, answering, admitted the making of a contract, which they set out in their answer, but denied that it was the one set out in the complaint, denied the allegations of the complaint with respect to its breach and the damages flowing therefrom; and, counterclaiming, sought to recover on account of a breach by the plaintiffs of the contract which was entered into. The case was tried to the court without a jury. The court found that the contract as set forth in the complaint had been entered into by the parties; that it had been substantially carried out by the defendants in all respects except as to saving the plaintiffs harmless from liability on a certain depositary bond; that the plaintiffs had performed their contract according to the terms thereof; and held that plaintiffs were entitled to recover on account of failure of the defendants to save them harmless from liability on such depositary bond, but on no other account; and further held against the defendants on their counterclaim.
Judgment was entered in accordance with the findings, conclusions, and order of the trial court. Thereafter the defendants perfected their appeal to this court from the judgment as entered and specified certain questions of fact which they desired to be reviewed. The statement of the case was settled accordingly.
The facts as disclosed by the record are substantially as follows: The plaintiffs were stockholders in and directors and officers of a Minnesota banking corporation. This bank was in difficulties. On account thereof the plaintiffs, on April 5, 1926, entered into a written contract with the defendants, by the terms of which the plaintiffs agreed to transfer to the defendants the stock of said bank and to pay them the sum of $ 40,000 in money or such other medium as might be satisfactory to the defendants. In consideration whereof, the defendants agreed to receive and take over the stock, enter into the control and possession of the bank, refinance it, keep it open and doing business properly conduct and manage it, assume all liability to the depositors, as shown by the books of the bank on that date, and "to assume all liability to state, county and city depositors on depositary bonds executed by the first parties (plaintiffs) and now in force, and to save them harmless from liability on such bonds, but to save trouble and delay the first parties are to...
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