National Surety Co. v. Coates

• Decision Date: 22 July 1907
• Citation: 104 S.W. 219
• Parties: NATIONAL SURETY CO. v. COATES.
• Court: Arkansas Supreme Court

104 S.W. 219

NATIONAL SURETY CO. v. COATES.

Supreme Court of Arkansas.

July 22, 1907.

Appeal from Circuit Court, Pulaski County, First Division; R. J. Lea, Judge.

Action by James Coates against the National Surety Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for a new trial, with directions to overrule a demurrer sustained to a paragraph of the answer.

W. S. McCain, for appellant. Geo. W. Williams, for appellee.

McCULLOCH, J.

The plaintiff, James Coates, instituted this action against the defendant National Surety Company to recover for a breach of conditions of a bond in the sum of $1,000, executed by the defendant to plaintiff for the faithful performance by one Bishop of a contract between the plaintiff and Bishop, whereby the latter undertook to furnish for the plaintiff a sufficient number of horses and drivers and to properly perform a mail service contract with the United States, covering a period of four years from the 1st day of July, 1902. The answer of the defendant as amended contained the following paragraph, to which the court sustained a demurrer: "For further defense, this defendant says that suit was brought in this court by the plaintiff against this defendant and Bishop on the same contract and bond now set up in the complaint on or about the 24th day of March, 1903, and the two defendants in that suit set up and pleaded that said contract had been terminated and evidence was adduced on a jury trial of said suit tending to show that said contract had been terminated, and rescinded on or about the 1st day of January, 1903, and on a trial of that issue the jury in said cause found a verdict for the defendants, and this court thereupon, on the ____ day of ____, 190_, entered a judgment discharging this defendant and said Bishop from any further liability on the contract and bond sued on." The case was tried upon the defenses tendered in other paragraphs of the answer, and the trial resulted in a verdict and judgment for the plaintiff, from which the defendant appealed.

The paragraph just quoted contains a complete defense to the action, and the demurrer should not have been sustained. It is urged on behalf of the appellee that the former adjudication was not a bar to the present action, for the reason that the latter is instituted to recover damages accruing since the former adjudication. This does not prevent the former judgment barring the present action. According to the allegations of this amendment, the question of the defendant's liability on the contract of suretyship sued on was determined in the former action adversely to the...