National Surety Company, a Corp. v. Roth
| Decision Date | 27 June 1921 |
| Citation | 232 S.W. 737,208 Mo.App. 277 |
| Parties | NATIONAL SURETY COMPANY, a Corporation, Respondent, v. W. F. ROTH, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Circuit Court of Jackson County.--Hon. Thos. B Buckner, Judge.
REVERSED.
Judgment reversed.
L. O Carter for respondent.
Ellis Gossett, Dietrich & Tyler for appellant.
This is an action upon a contract of indemnity given by one Holter and the defendant, Roth, to the plaintiff, National Surety Company, in consideration of the latter executing, as surety for said Holter, a replevin bond in an action brought by said Holter to recover possession of certain grading machinery on which he held a chattel mortgage. The case first originated in the justice court, went on appeal to the circuit court where it was tried anew by the court sitting as a jury, and a judgment was rendered for plaintiff in the sum of $ 197.89 with six per cent interest from April 23, 1918, the date of the judgment rendered by the justice of the peace. The defendant has appealed.
Holter, owning a grading outfit, sold it to a firm of contractors in Kansas City, Kansas, and took a chattel mortgage thereon to secure payment of the purchase price, which mortgage was duly recorded in the proper county. The mortgagors afterward removed the property to Arkansas where they became involved and the outfit was there attached on a claim against them. Holter, to get the property into his possession as mortgagee and out of the possession of the sheriff who held it under the attachment, resorted to replevin and to furnish the required replevin bond applied to the plaintiff, National Surety Company, through its local agent, Algire, in Kansas City, Kansas, to make such bond. Before the Surety Company would do so, it required Holter to execute, with a surety thereon, an indemnity contract. Holter executed it and procured the defendant, Roth, to sign it with him, Roth not having any interest whatever in the machinery nor being otherwise interested in the transaction in any way except to sign the indemnity contract as a friendly act in Holter's behalf. Said indemnity contract is the one on which the suit herein is based.
That portion of the contract involving the matters herein sued for is as follows:
"That we will at all times indemnify and keep indemnified the company, and hold and save it harmless from and against any and all demands, liabilities, loss, damage or expense of whatsoever kind or nature, including counsel and attorney's fees, which it shall at any time sustain or incur by reason, or in consequence of having executed the said instrument."
The replevin suit in Arkansas was disposed of in Holter's favor in every respect, so that the plaintiff herein, the Surety Company, never became liable on the replevin bond. The money sued for in the case at bar, and for which the trial court rendered judgment in plaintiff's favor, is for sums paid out by plaintiff, consisting of a fee of $ 150 paid to an attorney, a Mr. Carter, of Kansas City, Kansas, to prosecute the replevin suit, his expenses of $ 37.89 in going down to Arkansas, and $ 10 for a deposition which the attorney had taken in the replevin case, aggregating the $ 197.89 for which judgment was rendered with interest.
The contention of the defendant Roth in this suit is that the payment by the plaintiff Surety Company of these sums was voluntary and, therefore, they cannot be recovered.
It is shown by plaintiff's own evidence, and it is therefore beyond dispute, that Holter employed Carter, who was, and theretofore had been, his attorney in other matters, to bring the replevin suit and to carry it through to judgment, and the two had an understanding about fees and it was expected that the replevin suit would ultimately go to a higher court, though it afterwards turned out that it didn't. Holter was to give him $ 50 and his expenses when he went down, and the two, Holter and Carter, went to Arkansas two or three times before trial of the replevin suit was reached or obtained, and Holter made two or three $ 50 payments to him, and also paid the expenses of both himself and Carter, except on the last trip, when the trial of the replevin suit was had. He, Holter, paid his own expenses on this last trip but says he did not pay Carter's. The replevin suit was docketed for trial about the 24th of July, 1912, so that this last trip was evidently made at a time when Carter had been employed by the plaintiff Surety Company and it had decided and told Carter it would pay them and reimburse itself at the expense of Roth, as the facts hereinafter related will show. Nothing was ever said to Holter about paying them.
At some time prior to July 3, 1912, Carter, without consulting or saying anything to Holter about payment of further fees or expenses, and without ascertaining his attitude toward such matters or toward the prosecution of the replevin suit, wrote to plaintiff's local agent, Algire, telling him there was "some doubt" as to whether or not Holter would "probably prosecute his suit to a final conclusion" and that the purpose of his letter was to notify him, Algire, of the "probability" that Holter "will fail to properly prosecute this suit to a conclusion." Thereupon Algire, likewise without saying anything to Holter about it, wrote to Roth and Carter telephoned Roth about fees.
Defendant Roth thereupon went to Holter about it, but Holter denied that he was going to abandon the replevin suit. According to Roth, Holter said, when asked by Roth about it,
Holter did not deny this nor was he even asked to...
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