Missouri, Kansas & Texas Railway Co. v. American Surety Company of New York

• Decision Date: 30 December 1921
• Citation: 236 S.W. 657,291 Mo. 92
• Parties: MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. AMERICAN SURETY COMPANY OF NEW YORK, Appellant
• Court: Missouri Supreme Court

236 S.W. 657

291 Mo. 92

MISSOURI, KANSAS & TEXAS RAILWAY COMPANY v. AMERICAN SURETY COMPANY OF NEW YORK, Appellant

Supreme Court of Missouri

December 30, 1921

Appeal from St. Louis City Circuit Court. -- Hon. J. Hugo Grimm Judge.

Affirmed.

J. D Johnson for appellant.

(1) Plaintiff amended petition, on which the case was tried failed to state facts sufficient to constitute a cause of action against defendant; and the trial court therefore erred in overruling defendant's demurrer to the petition, and in refusing to give defendant's instructions at the close of plaintiff's evidence to the effect that under the pleadings and evidence plaintiff was not entitled to recover. Watson Coal Co. v. James, 72 Iowa 184; Tibbetts v. Moore, 23 Cal. 208; Sylvestri v. Missocci, 165 Mass. 337; Sec. 4239, R. S. 1899; Sec. 8249, R. S. 1909. (2) The amended petition failed to state a cause of action and there was an entire failure of proof of the cause of action as stated in said petition; therefore, the trial court erred in refusing to give defendant's instruction, offered at the close of all the evidence, to the effect that under the pleadings and the evidence plaintiff was not entitled to recover. Mill v. Elmore, 154 Mo.App. 651; Bauer v. Cabanne, 105 Mo. 110; Nofsinger v. Hartnett, 84 Mo. 549; Reissans v. Whites, 128 Mo.App. 135; Beers v. Wolf, 116 Mo. 179; School District v. Green, 134 Mo.App. 421; Moore v. Title, 151 Mo.App. 256; Neuwirth v. Moydell, 188 Mo.App. 48; State ex rel. v. Schaper, 152 Mo.App. 542; Am. Bonding Co. v. Pueblo, 150 F. 17. (3) That portion of defendant's answer, which the trial court struck out on plaintiff's motion constituted new matter and a complete affirmative defense, to plaintiff's cause of action; therefore, the trial court erred in striking out said portion of the answer. (4) The trial court erred in finding and holding that, because defendant was a surety on the bond in suit for hire, any ambiguity in the bond sued on should be resolved against the defendant, or that the provisions of the bond should be more strictly construed against defendant than a similar bond would be construed against a person who was not a surety for hire. Lackland v. Renshaw, 256 Mo. 135; Southern v. Bankers' Sur. Co., 184 S.W. 1030; Evans v. U. S. Fid. Co., 195 Mo.App. 438; Trust Co. v. Trimbler, 199 S.W. 1052. (5) The breach of the bond, as alleged in the petition, was not the proximate cause of the damages, which it is also alleged resulted to plaintiff from such breach; nor were the damages alleged such as might reasonably have been expected to result from said alleged breach; besides, there was an entire failure of proof of said averments. The trial court, therefore, again erred in overruling defendant's demurrerr to the petition, in striking out parts of its answer, and in refusing to give defendant's said two peremptory instructions to find for it. State ex rel. v. Farmer, 201 S.W. 955; State ex rel. v. Tittman, 134 Mo. 162; State ex rel. v. Thompson, 81 Mo.App. 556; Howell v. Railway Co., 171 Mo.App. 92; Tirny v. Hogan, 181 Mo.App. 48; Gourley v. Lumber Co., 185 Mo.App. 360. (6) According to the averments of the petition, the only breach of the bond occurred in 1899, sixteen years before the institution of this suit, and the same was fully barred by the Statute of Limitations at the time this suit was brought. State v. Tittman, 134 Mo. 168; Salmon Falls Bank v. Leyser, 116 Mo. 51; State ex rel. v. Thompson, 81 Mo.App. 556; State ex rel. v. Packard, 201 S.W. 954; Sec. 1888, R. S. 1909.

J. W. Jamison, Henry E. Haas and Carl S. Hoffman for respondent.

(1) This being a law case the appellate court will not review or weigh the evidence further than to see that the judgment of the trial court is supported by substantial testimony. Where a case is tried by the court, sitting as a jury, the findings of fact by the trial court are "conclusive" and just as binding on the appellate court as any "conceded" fact would be. State ex rel. Bank v. Sturgis, 276 Mo. 559, 208 S.W. 458; In re Lankford's Estate, 272 Mo. 1, 197 S.W. 147; Cousins v. White, 246 Mo. 296, 309; Willis v. Reed, 190 S.W. 377; Cement Co. v. Bruce, 160 Mo.App. 246; Ross v. Grand Pants Co., 170 Mo.App. 291, 156 S.W. 92; Grocery Co. v. Hotel Co., 183 Mo.App. 429, 166 S.W. 1125. (2) Plaintiff's cause of action was not barred by any statute of limitation. Under the statute and decisions plaintiff had the right to commence its action at any time within ten years "after the cause of action accrued." This being an indemnifying bond, plaintiff's cause of action did not "accrue" within the meaning of the statute until it had been damnified, that is, until it paid the judgment of the Bagnell Timber Company, and the costs of that case, in the year 1913. Secs. 1887, 1888, R. S. 1909; State ex rel. v. Logan, 195 Mo.App. 171; Boyd v. Buchanan, 176 Mo.App. 56; Rowsey v. Lynch, 61 Mo. 563; State ex rel. v. Tittmann, 134 Mo. 162; Lesem v. Neal, 53 Mo. 412; State ex rel. v. Finn, 98 Mo. 541; State ex rel. v. Hollenbeck, 68 Mo.App. 366; 2 Wood on Limitations (4 Ed.), sec. 175; 15 L.R.A. (N.S.) pp. 156, 164; 19 Am. & Eng. Ency. Law (2 Ed.), 193; Purcell v. Land Title Co., 94 Mo.App. 5; Huse v. Ames, 104 Mo. 91; 16 Am. & Eng. Ency. Law (2 Ed.), 178. (3) The judgment recovered by the Bagnell Timber Company against the Railway Company in the Circuit Court of Pettis County was not res adjudicata against the plaintiff in this action. To make matters res adjudicata there must be a concurrence of the four conditions following: Identity of the thing sued for, identity of the cause of action, identity of persons and parties to the action, identity to the quality of the person for or against whom the claim is made. These necessary elements are lacking in the instant suit. Finkelnburg on Appellate Practice (2 Ed.), p. 170; State to use v. Hollinshead, 83 Mo.App. 678; Pickel Stone Co. v. Wall, 108 Mo.App. 495; Winham v. Kline. 77 Mo.App. 36, 46; 24 Amer. & Eng. Ency. Law (2 Ed.), 778. Moreover, before the plea of former adjudication can be invoked it must appear that the parties were adversaries in the first action. Here, neither the parties were adversaries nor is the cause of action the same. 24 Amer. & Eng. Ency. Law (2 Ed.), 731; Herman on Estoppel & Res Judicata, sec. 138; McMahan v. Geiger, 73 Mo. 145; City of Springfield v. Plummer, 89 Mo.App. 515; O'Rourke v. Lindell Ry. Co., 142 Mo. 342; Womach v. City of St. Joseph, 201 Mo. 467, 480; Charles v. White, 214 Mo. 187, 211; Comstock v. Keating, 115 Mo.App. 372; Canterbury v. Kansas City, 130 Mo.App. 1; State Bank v. Bartle, 114 Mo. 276. (4) The bond in suit is a very clear and comprehensive document, but if it can be said to contain any ambiguities these ambiguities must be resolved against the appellant, it being a surety for hire and having drawn the bond for a consideration. Barton v. Title Guaranty Co., 192 Mo.App. 564; Lackland v. Surety Co., 256 Mo. 133; Rule v. Anderson, 160 Mo.App. 347; Boppart v. Surety Co., 140 Mo.App. 675; Grocery Co. v. Guaranty Co., 130 Mo.App. 421, 429; Roark v. Surety Co., 130 Mo.App. 401, 407; American Surety Co. v. Pauly, 170 U.S. 133. The operative words of a deed, or other instrument, which are expressed in clear and unambiguous language, are not to be controlled, cut down or qualified by a recital or narrative of intention. Beal's Cardinal Rules of Legal Interpretation (2 Ed.), p. 165; 1 Brandt on Suretyship (3 Ed.), sec. 192; Ashbaugh v. Ashbaugh, 273 Mo. 353; Ferguson v. Dent, 8 Mo. 667; Dryden v. Holmes, 9 Mo. 135; Carr v. Lackland, 112 Mo. 457; 16 Am. & Eng. Ency. Law (2 Ed.), 175.

WALKER J. Higbee, J., dissents in separate opinion, and Woodson, J., dissents.

OPINION

In Banc.

WALKER, J.

-- This suit was brought by the Missouri, Kansas & Texas Railway Company against the American Surety Company in the Circuit Court of the City of St. Louis on a bond of indemnity given by the firm of Graham & Miller as principal and the defendant, the American Surety Company, as surety, to the plaintiff in the sum of $ 10,000. Upon a trial to the court there was a judgment in favor of the plaintiff, from which defendant appeals. The bond sued on was as follows:

"Know All Men by These Presents, That we, J. T. Miller and L. G Graham, composing the firm of Graham & Miller, principals, and American Surety Company of New York, as surety, are indebted to the Missouri, Kansas & Texas Railway Company, hereinafter called the 'Railway Company,' in the penal sum of ten thousand dollars, for the payment whereof well and truly to be made we hereby bind ourselves, our heirs and representatives, successors and assigns, jointly and severally, by these presents.

"The obligation of this bond is such that,

"Whereas, The said Graham & Miller are general railroad tie contractors, engaged in the business of furnishing to railway companies crossties, switch ties and lumber, in the State of Missouri; and,

"Whereas, The said Graham & Miller for several years past have been selling ties and lumber to the Railway Company and desire to furnish ties and lumber to said Railway Company during the year 1899; and,

"Whereas, The Railroad Company is willing to continue purchasing of said Graham & Miller ties and lumber, from time to time as it may want them, provided the same conform to specifications and requirements of the Railway Company and are accepted by its fully authorized agent after inspection; and, provided further, that said Graham & Miller will hold it, the Railway Company, harmless by reason of any and all claims which may be made against it by laborers, materialmen and others, to and on account of any ties and lumber furnished by them to the Railway Company, between January 1, 1898, and January 1, 1900.

"Now Therefore,...