National Surety Company v. Love

• Decision Date: 14 July 1920
• Docket Number: 21086
• Citation: 178 N.W. 917,105 Neb. 38
• Parties: NATIONAL SURETY COMPANY, APPELLANT, v. THOMAS LOVE, APPELLEE. [*]
• Court: Nebraska Supreme Court

178 N.W. 917

105 Neb. 38

NATIONAL SURETY COMPANY, APPELLANT, v. THOMAS LOVE, APPELLEE. ^[*]

No. 21086

Supreme Court of Nebraska

July 14, 1920

APPEAL from the district court for Sioux county: WILLIAM H WESTOVER, JUDGE. Affirmed.

AFFIRMED.

F. S Baker and Crane, Boucher & Sternberg, for appellant.

J. E Porter, O. W. Percy and Tyrrell & Westover, contra.

OPINION

CAIN, C.

In this action the National Surety Company sued the defendant, Love, to recover the sum of $ 650.80 upon a written contract executed by Love to indemnify the company for any loss, damage or expense it should sustain by reason of becoming his surety upon an attachment bond executed on the 8th day of May, 1914, in a case where he sued one Al Crystal in the circuit court of Klamath county, Oregon, to recover the sum of $ 1,000. The case was tried to the court without a jury, and, on May 12, 1919, resulted in a judgment dismissing plaintiff's action. Plaintiff appeals, assigning as error that the judgment is contrary to law and to the evidence.

The facts are somewhat involved, but will be stated with as much brevity as possible, as follows: On May 8, 1914, Thomas Love began an action and attachment proceeding against Al Crystal in the Oregon court to recover $ 1,000 for money had and received, and the plaintiff herein became surety on the attachment undertaking. The attachment was levied upon a stock of liquors and bar fixtures belonging to Crystal in Klamath Falls, Oregon, but he gave a redelivery bond with Powell and Montgomery as his sureties, and again got possession of his goods. On August 14, 1914, upon the affidavit of Love a successive writ of attachment issued, which was served on August 20, 1914, by garnishing $ 1,000 in the hands of the First State & Savings Bank of Klamath Falls. In the case of Love v. Crystal, plaintiff was represented by C. M. O'Neill, and the defendant by W. H. A. Renner, assisted by J. C. Rutenic and Joseph S. Kent, all of Klamath Falls. On August 20, 1914, Love's attachment case was dismissed upon his own motion, the order of court reciting that an adjustment had been made of all differences between the parties by the sureties on the redelivery bond, "who settled all matters pertaining to said cause of action." It is undisputed that, a day or two before the order of dismissal was entered, O'Neill, the attorney of record for Love, and Renner, the attorney of record for Crystal, met together and discussed the settlement of the case, and agreed upon the terms of settlement; that they together went and saw Powell, one of the sureties on the redelivery bond, and that Powell paid O'Neill $ 1,000 in settlement of the case in the presence of Renner, and that O'Neill and Renner were both present in court when the order of dismissal was entered. From that point there is a conflict between the testimony of O'Neill and that of Renner. O'Neill testifies that a stipulation of settlement was drawn up in triplicate and signed by himself and Renner. Renner denies this, and takes the ground in his testimony that, at the time the settlement was made, although he was still Crystal's attorney, he was not acting for him, and that Crystal knew nothing about it until from one to six months later, and that the $ 1,000 paid to O'Neill was not Crystal's money, but that Powell paid it out of his own funds to escape a prospective additional liability of $ 250 on the redelivery bond. Renner testified that he did not represent the sureties on the redelivery bond at the settlement, and accounts for his participation by saying that he did represent the Jesse Moore Hunt Liquor Company, which had idemnified these sureties. On the other hand, O'Neill testified in open court very fully to all the circumstances attending the settlement, and explained that the $ 1,000 paid was really Crystal's money that had been garnisheed in the bank, and that Renner was acting for Crystal; and his testimony shows that he had no suspicion that Renner was really representing an undisclosed client. A careful examination of the record convinces us that the trial court was right in adopting O'Neill's version of the settlement. We hold that the evidence clearly establishes the fact that a complete settlement of the attachment case of Love v. Crystal was made between the parties thereto acting through their respective attorneys. The payment by Crystal of the full amount claimed by Love was a confession of the justice of the claim, and, as under the Oregon law an attachment seems obtainable on plaintiff's affidavit that his claim is just, it follows that the writ did not issue wrongfully, and that there was no liability on the attachment bond.

But appellant insists that there was an adjudication that there was no settlement by Crystal and that the attachment wrongfully issued, in an action in the same Oregon court wherein Crystal sued the National Surety Company and Love for damages on the attachment bond on the alleged ground that the writ wrongfully issued. The last case was begun on March 8, 1915, and again Crystal was represented by Renner, and the Surety Company by Rutenic and Kent, who had been attorneys for Crystal in the attachment suit. Love was then a nonresident of...