M. J. O'fallon Supply Co. v. Tagliaferro
| Decision Date | 06 March 1924 |
| Docket Number | No. 2749.,2749. |
| Citation | 29 N.M. 562,224 P. 394 |
| Parties | M. J. O'FALLON SUPPLY CO.v.TAGLIAFERRO ET AL. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Syllabus by the Court.
A defendant surety on a contractor's bond may show the existence of a condition that another, whose name appears as surety in the body of the bond, should likewise sign, imposed at the time of its execution, where such bond is not perfect on its face at the time of its delivery to the obligee because not signed by the other proposed surety, although the obligee has no actual knowledge of the condition.
Whether or not a contractor's bond contained the name of another proposed surety in the body thereof at the time of its execution and delivery is a material question of fact which should be submitted to the jury, the evidence being conflicting, where there is evidence that the defendant sureties executed the bond on condition that it should not be delivered until such other proposed surety should have executed the same.
The fact that a contractor's bond, at the time of its delivery, contains the name of a surety, other than those who have signed, is sufficient to put the obligee on notice that the surety may have signed on condition that all who are named with him in the bond should likewise sign, where the surety actually signed on that understanding.
Evidence of the known good financial standing of a proposed surety is admissible, within the sound discretion of the court, as a circumstance tending to corroborate the testimony of the executing sureties that they had executed and delivered the bond on condition that it should also be executed by such proposed surety.
Rejected evidence examined, and held to be hearsay and properly excluded.
Appeal from District Court, Bernalillo County; Hickey, Judge.
Action by the M. J. O'Fallon Supply Company against F. Tagliaferro and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded for new trial.
Whether or not a contractor's bond contained the name of another proposed surety in the body thereof at the time of its execution and delivery is a material question of fact which should be submitted to the jury, the evidence being conflicting, where there is evidence that the defendant sureties executed the bond on condition that it should not be delivered until such other proposed surety should have executed the same.
George S. Klock, of Alburquerque, for appellant Totti.
Geo. S. Downer, of Albuquerque, for appellant Tagliaferro.E. W. Dobson, of Albuquerque, for appellee.
Action by the obligee against the sureties on a contractor's construction bond. The defense is that the bond was executed by said sureties upon condition that a third person named therein should also join as surety. The court, on motion of the obligee, struck out the testimony concerning the conditional execution, and directed a verdict against the sureties on the theory that the obligee had no actual notice of the conditional nature of the execution. The sureties challenge that ruling of the court on this appeal.
The evidence is uncontradicted that the principal in said bond went with the manager of the obligee, appellee here, to the law office of Colonel Dobson for the purpose of having the bond prepared. The names of several proposed sureties were suggested by the principal, and, finally, by agreement, the name of Toti, one of the appellants here, and that of Bonaguidi were inserted in the body of the bond and also in the form for justification of sureties. The principal then took the bond away with him, and later returned to the office of appellee, and informed the manager that Bonaguidi was out of town, and suggested the name of Tagliaferro as surety in his place. This substitution was agreed to, and again the manager and the principal went to the office of Colonel Dobson, where Bonaguidi's name was erased, and the name of Tagliaferro, the other appellant here, was substituted.
[1] The conflict in the evidence is as to whether or not the appellants had executed the bond before the substitution of Tagliaferro's name for that of Bonaguidi, or afterwards. Both of the appellants testified that Bonaguidi's name appeared in the bond as originally prepared at the time the same was presented to them for signature, that they executed the same upon the distinct understanding that Bonaguidi should also execute it, and that the bond was delivered by each of them to the principal upon that condition. The manager of the appellee and Colonel Dobson both testified that at the time of the substitution of names no one had executed the bond. Thus there is a well-defined issue of fact, but the court did not err in taking the case from the jury, unless these facts in issue are material. For the purpose of testing the materiality of such facts, we must necessarily assume, for the moment, that the testimony of the appellants is true.
[2][3] The question before us is whether the sureties may show the existence of a condition that another, whose name appears as surety in the body of the bond, should likewise sign,...
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Mersfelder v. Roberts.
...to the claimed liability under Hendry v. Cartwright, 14 N. M. 72, 89 P. 309, 8 L. R. A. (N. S.) 1056, and M. J. O'Fallon Supply Co. v. Tagliaferro, 29 N. M. 562, 224 P. 394. Appellant first urges as error that the evidence was insufficient to support the court's findings. This proposition i......
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Denton v. Fireman's Fund Indemnity Company, 7939.
...also sign and complete the instrument. See Hendry v. Cartwright, 14 N.M. 72, 89 P. 309, 8 L.R.A.,N.S., 1056; M. J. O'Fallon Supply Co. v. Tagliaferro, 29 N.M. 562, 224 P. 394; American Surety Company of New York v. Egan, 6 Cir., 62 F.2d 223; 50 Am.Jur., Suretyship, § 161, p. 1008. The asser......