Longfellow v. McGregor
| Decision Date | 30 January 1894 |
| Docket Number | 8528 |
| Citation | 57 N.W. 926,56 Minn. 312 |
| Parties | Levi Longfellow v. William M. McGregor et al |
| Court | Minnesota Supreme Court |
Argued January 22, 1894.
Appeal by plaintiff, Levi Longfellow, from a judgment of the District Court of Hennepin County, Thomas Canty, J., entered September 20, 1893, that he take nothing by this action and pay defendants $ 12.73 costs.
On August 1, 1890, defendant William M. McGregor made written application for, and borrowed of Levi Longfellow and Edward Russell, partners in business, $ 2,200 and to secure repayment of the money and interest on or before three years thereafter, gave to Russell his note and a mortgage on lot ten (10) in Pearsall's Addition to Minneapolis and the dwelling house thereon. As further security McGregor obtained $ 2,500 insurance against fire upon the house with loss, if any, payable to the mortgagee or his assigns as his interest might appear. In October, 1890, the house was destroyed by fire and on November 1, 1890, the Insurance Company adjusted the loss at $ 1,175.14 and paid the money to Longfellow and Russell. To enable McGregor to rebuild they paid over the insurance money to him November 7, 1890, and he gave them a bond in the penal sum of $ 2,000 with George M. McGregor and Edson S. Gaylord as sureties, containing the condition set forth in the opinion, but it was not sealed. On November 8 1890, Russell assigned all his interest in the note and mortgage to Longfellow and soon thereafter departed this life. McGregor failed to rebuild, and Longfellow as surviving partner brought this action July 20, 1892, on the bond against McGregor and his sureties to recover $ 2,000 damages. The complaint stated these facts and set out a copy of the bond. At the trial January 10, 1893, the court was of the opinion that the condition in the bond is meaningless and ordered judgment for the defendants. Judgment having been entered, plaintiff appeals.
Judgment reversed.
Fred W Reed, for appellant.
Judgment should have been given plaintiff on the facts. Courts look at the substance rather than the form of contracts and seek for the real intention of the parties. The words used are sufficient to show the intention of the parties to condition this bond upon the rebuilding of the house. It says it is given upon the express agreement to so rebuild. Evidently the words, "Now if he shall so rebuild," were unintentionally omitted just before the words, "then the above obligation to be void." The court can supply them from the context and circumstances.
If the court was right in holding that the condition is not sufficiently expressed, the condition and not the bond becomes "meaningless, contradictory and nugatory" and the bond becomes an absolute obligation to pay $ 2,000. 2 Blackstone, Comm. 340; Murfree, Bonds, § 186; Stockton v. Turner, 7 J. J. Marsh. 192; Giles v Halsted, 24 N.J.L. 366.
The ambiguity, if any, was removed by the evidence. Defendants therefore waived the objection to the form of the bond, even if the objection might have been good if taken at the proper time. Levering v. Langley, 8 Minn. 107; Isaacson v. Minneapolis & St. L. Ry. Co., 27 Minn. 463; Conway F. Ins. Co. v. Sewall, 54 Me. 352; Meyer v. Fiegel, 34 How. Pr. 434.
Welch & Welch, Edson S. Gaylord, Alfred J. Harris and Charles H. Howard, for respondents.
A surety is not to be held beyond the terms of his contract. The liability of a surety is not to be extended by implication beyond the precise terms of his bond. It cannot be extended by construction or implication. Simonson v. Grant, 36 Minn. 439; Tomlinson v. Simpson, 33 Minn. 443; Cushing v. Cable, 48 Minn. 3; Hayden v. Smith, 49 Conn. 83.
This instrument is void under the statute of frauds, as there is no consideration expressed for the execution of the instrument, and there being no seal there is no presumption as to a consideration which bonds under seal import. 1878 G. S. ch. 41, § 2; Brandt, Suretyship & Guaranty, §§ 82, 83; Wilson Sew. M. Co. v. Schnell, 20 Minn. 40; Barney v. Forbes, 118 N.Y. 580; Church v. Brown, 29 Barb. 486; Parry v. Spikes, 49 Wis. 384.
Only written contracts of indemnity are valid and where the written contract does not conform to the intention of the parties in the oral contract, such contract is void, and if the parties have not made such a valid written contract, the courts will not make one for them. Trustees v. Otis, 85 Ill. 179; Harrison v. Field, 2 Wash. (Va.) 136.
Plaintiff has never been to any expense or been damnified by reason of the alleged default, inasmuch as he has never rebuilt the house in question or been to any expense on account thereof, until then there can be no recovery. Compensation for damages actually sustained and liquidated by obligee only can be recovered. Campbell v. Rotering, 42 Minn. 115; Sprague v. Wells, 47 Minn. 504; Weller v. Eames, 15 Minn. 461; Carson Opera House Assn. v. Miller, 16 Nev. 327; Lott v. Mitchell, 32 Cal. 24; Willson v. McEvoy, 25 Cal. 170; Prader v. Grimm, 28 Cal. 11; Thompson v. Taylor, 30 Wis. 68.
It does not appear but that the plaintiff can recover upon the mortgage note in full of the maker, or that the lot without the house is not adequate security.
Collins, J. Gilfillan, C. J., absent on account of sickness; took no part.
William M. McGregor applied to the firm of Longfellow & Russell, of which plaintiff was a member, for a loan of $ 2,200, to be secured by a mortgage upon real estate, with fire insurance on the buildings upon it, in the sum of $ 2,500, payable, in case of loss, to the mortgagee. The loan was made, and the mortgage to secure it executed to Russell, and fire insurance effected for $ 2,500, payable, in case of loss, to the mortgagee. A loss occurred, and was adjusted...
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