National Surety Corp. v. Estate of Burger

• Citation: 186 S.W.2d 510
• Decision Date: 20 March 1945
• Docket Number: No. 26765.,26765.
• Parties: NATIONAL SURETY CORPORATION, A CORPORATION, APPELLANT, v. ESTATE OF NANCY GENE BURGER, A MINOR, RESPONDENT.
• Court: Missouri Court of Appeals

186 S.W.2d 510

NATIONAL SURETY CORPORATION, A CORPORATION, APPELLANT, v. ESTATE OF NANCY GENE BURGER, A MINOR, RESPONDENT.

No. 26765.

St. Louis Court of Appeals. Missouri.

Opinion filed March 20, 1945.

Respondent's Motion for Rehearing Overruled April 17, 1945.

Petition for Writ of Certiorari Denied June 4, 1945.

Appeal from the Circuit Court of St. Louis County. — Hon. Fred E. Mueller, Judge.

REVERSED AND REMANDED (with directions).

Fordyce, White, Mayne, Williams & Hartman and Walter R. Mayne for appellant.

(1) Since this appeal is of an equitable nature, this court is not bound by the decision or findings of the lower court, but may reach its own conclusion of facts and try and decide the case de novo. Collier v. Porter, 16 S.W. (2d) 49, 322 Mo. 697; Vannoy v. Duvall Trust Co., 29 S.W. (2d) 692; Horn v. Owens, 171 S.W. (2d) 585; Emlet v. Gillis, 63 S.W. (2d) 12; Mosley v. Cavanaugh, 125 S.W. (2d) 852. (2) A surety on a guardianship bond desiring a release can be discharged if the statutes applicable thereto are fully complied with, and section 3330, R.S. Mo. 1939, specifically provides a manner in which a surety on a guardianship bond can be discharged from further liability. Sec. 3330, R.S. Mo. 1939; 2 Appleman Insurance Law and Practice, sec. 6893, p. 823; Mass. Bonding and Insurance Company v. Simonds-Shields-Lonsdale Grain Company, 49 S.W. (2d) 645; National Surety Corporation v. Ladd et al., 132 Texas 295, 115 S.W. (2d) 600. (a) A surety bond for an indefinite and contingent liability and not for a sum fixed and certain to become due may be revoked and end its future liability, upon the giving of proper notice and by complying with the law applicable thereto. 56 C.J., sec. 152; 1 Brandt on Suretyship and Guaranty (3 Ed.), sec. 184; 35 Cyc., p. 85, sec. 6; Massachusetts Bonding & Insurance Company v. Simonds-Shields-Lonsdale Grain Company, 49 S.W. (2d) 645; Gimbel Bros. v. Mitchell, 219 S.W. 676; Bremer v. Ruftner, 202 N.W. 206; Nat. Liberty Ins. Co. v. Meyer, 143 N.E. 162; 50 C.J., sec. 152. (b) Parties to a contract made and entered into in good faith are presumed to have contracted according to the then-existing law of the State wherein the contract is entered into and are obligated to comply with the terms of said contract, unless the subject or context of the contract is in violation of law or of the statutes applicable thereto. Kelsall v. Riss & Co., 165 S.W. (2d) 329; Maxey v. Railey and Bros. Banking Company, 57 S.W. (2d) 1091; Roll v. Fidelity National Bank and Trust Co. of Kansas City, 115 S.W. (2d) 148; Manufacturers Finance Trust Co. v. Collins, 58 S.W. (2d) 1004, 227 Mo. App. 1120. (3) Statements made by an agent within the scope of his authority are binding upon his principals. Koewing v. Greene County Building & Loan Assn. of Springfield et al., 38 S.W. (2d) 40; Gillstrap v. Osteopathic Sanatorium Co., 24 S.W. (2d) 249, 224 Mo. App. 798; Farm and Home Savings & Loan Assn. of Mo. v. Stubbs, 98 S.W. (2d) 320, 231 Mo. App. 87; Luechtefeld v. Marglous, 150 S.W. (2d) 710; Bowers v. Kansas City Public Service Co., 41 S.W. (2d) 810.

Thompson, Mitchell, Thompson & Young and R. Forder Buckley for respondent.

(I.) (a) This proceeding is legal, not equitable, in its nature. (1) Whether a proceeding is at law or in equity is to be determined from the pleadings and the relief sought. Richards v. Earls, 345 Mo. 260, 133 S.W. (2d) 381; Dinkelman v. Hovekamp, 336 Mo. 567, 80 S.W. (2d) 681; Wolfersberger v. Hoppenjon, 334 Mo. 817, 68 S.W. (2d) 814; Slagle v. Callaway, 333 Mo. 1055, 64 S.W. (2d) 923; Ebbs v. Neff, 325 Mo. 1182, 30 S.W. (2d) 616; Mendenhall et al. v. Pearce et ux., 323 Mo. 964, 20 S.W. (2d) 670; 1 C.J.S., sec. 54, p. 1153. The pleadings here contain nothing of an equitable nature, but only a question of whether plaintiff is entitled to statutory relief. (2) The parties and the trial court treated this matter throughout as a proceeding at law. (a) The parties waived a jury. (b) The trial court stated the proceeding was not equitable. (c) Plaintiff, requested a declaration of law and assigns error in the trial court not giving it. A declaration of law is not proper in an equity case. Freeman v. Wilkerson, 50 Mo. 554; Conran v. Sellew, 28 Mo. 320; Brann v. Missouri State Life Ins. Co. (Mo. App.), 226 S.W. 48; Ozark Land & Lumber Co. v. Robertson, 89 Mo. App. 480. (3) (a) This proceeding was by the statute made cognizable, in the first instance, by the probate court. In Missouri probate courts have no equitable jurisdiction. State ex rel. and to Use of Clay County State Bank v. Waltner, 346 Mo. 1138, 145 S.W. (2d) 152; Rawlings v. Rawlings, 332 Mo. 503, 58 S.W. (2d) 735; State Bank of Willow Springs v. Lillibridge, 316 Mo. 968, 293 S.W. 116; In re Glover, 127 Mo. 153, 29 S.W. 982. (b) Findings of fact by trial court sitting without a jury in law action stand as the verdict of a jury and are binding on appeal. Tillman v. Hutcherson et al., 348 Mo. 473, 154 S.W. (2d) 104; Ferguson v. Long, 341 Mo. 182, 107 S.W. (2d) 7; Bryant v. Bryant (Mo.), 50 S.W. (2d) 103; McBride v. Mercantile-Commerce Bank & Trust Co., 330 Mo. 259, 48 S.W. (2d) 922; Courtner v. Putnam, 325 Mo. 924, 30 S.W. (2d) 126. (c) Even if the proceedings were equitable, the judgment of the trial court must stand. (1) On appeal in equity cases, deference should be given to chancellor's findings of fact. Dent v. Dent (Mo.), 166 S.W. (2d) 582; Fendler v. Roy, 331 Mo. 1083, 58 S.W. (2d) 459; Wintz v. Johannes, 331 Mo. 536, 56 S.W. (2d) 109; Daggs v. McDemott, 327 Mo. 73, 34 S.W. (2d) 46; Queen City Inv. Co. v. Kreider (Mo.), 31 S.W. (2d) 1002. (2) Refusal of even a correct declaration of law, in equity cases, is not error. Mays v. Jackson, 346 Mo. 1224, 145 S.W. (2d) 392; Bank of Brimson v. Graham, 335 Mo. 1196, 76 S.W. (2d) 376; Krizek v. Treybal (Mo. App.), 15 S.W. (2d) 382; Parish v. Casner (Mo.), 282 S.W. 392. (II.) (a) The only method by which a surety may be relieved from a bond, such as the one here involved, is by strict compliance with the statute. Hartford Accident & Indemnity Co. v. White (Tenn. C. of A.), 115 S.W. (2d) 249; Taylor v. Taylor, 66 W. Va. 238, 66 S.E. 690; Sloan v. U.S.F. & G. Co., 126 Kan. 637, 270 P. 577; In re Demings Guardianship, 192 Wash. 190, 73 P. (2d) 764; Overfield v. Overfield, 17 Ky. L. Rep. 313, 30 S.W. 994; American Bonding Co. of Baltimore v. Hall, 57 Ind. App. 523, 106 N.E. 534; Great American Ind. Co. v. Jeffries (Ga. C. of A.), 16 S.E. (2d) 135; 50 C.J., sec. 152, pp. 94, 95, sec. 319, p. 190; 39 C.J.S., sec. 207, pp. 372, 376, 377; 25 Am. Jur., sec. 194, p. 120; 50 Am. Jur., sec. 33, p. 926, sec. 37, p. 929; 2 Appleman, Insurance Law and Practice, sec. 6893, p. 823. (b) In the absence of an enabling statute, one who has become a surety on the bond of an executor, administrator, guardian or trustee, has no right to terminate his future liability on the bond. Kaspar v. People, 230 Ill. 342, 82 N.E. 816; Clark v. American Surety Co., 171 Ill. 235, 49 N.E. 481; Lawyers Surety Co. v. Azrault, 165 App. Div. 254, 150 N.Y.S. 800; Title Guaranty & S. Co. v. Foster, 84 Okla. 291, 203 Pac. 231; Aetna Acc. & Liability Co. v. Langley, 68 Okla. 283, 174 Pac. 1046; Brookhart v. Younglove, 207 Iowa, 800, 218 N.W. 533; Com. Use of Stehle v. American Bonding Co., 245 Pa. 535, 91 Atl. 938; Newcomers Appeal, 43 Pa. 43, 7 Wright 43; Richter v. Leiby, 101 Wis. 434, 77 N.W. 745; 9 Appleman, "Insurance Law & Practice," sec. 5277, p. 73; 39 C.J.S., sec. 207, p. 376. (III.) The alleged contract regarding the surety-release contained in the application to the Surety Company was no part of the bond. Hence such contract will not be considered in this proceeding. Grand Lodge, etc., v. Mass. Bonding & Ins. Co., 324 Mo. 938, 25 S.W. (2d) 783; Hartford Accident & Ind. Co. v. White (Tenn.), 115 S.W. (2d) 249; Central Surety & Ins. Corp. v. Richardson (Okla.), 80 P. (2d) 663; Newcomb v. Ingram, 211 Wis. 88, 243 N.W. 209, 248 N.W. 171; 2 Brandt, "Suretyship & Guaranty" (3 Ed.), sec. 770, p. 1348; 39 C.J.S., sec. 207, p. 372. (IV.) There is no evidence that any misrepresentations were made by the principals to the surety. However, even if there had been, it would afford no ground for the release of the surety, since the obligee did not participate in the misrepresentation. The County of Linn et al. v. Farris, 52 Mo. 75; 50 C.J., sec. 88, p. 52; 11 C.J.S., sec. 30, p. 414; 50 Am. Jur., sec. 170, p. 1015; 2 Brandt, "Suretyship & Guaranty" (3 Ed.), sec. 33, p. 85, sec. 456, p. 857; 2 Appleman, "Insurance Law & Practice," sec. 6908, p. 860; Stearns, "The Law of Suretyship" (4 Ed.), sec. 15, pp. 13-15, sec. 108, pp. 158-9, sec. 127, p. 200; Spencer, "Suretyship," sec. 55, p. 75. (V.) Under the Missouri statutes the relief sought can be granted appellant only on condition that the principals give a new bond. The evidence shows that such a bond could not be obtained. Therefore the principals would be removed and the minor would suffer irreparable loss. R.S. Mo. 1939, secs. 3334, 3335, 3336, 3337; Hartford Acc. & Ind. Co. v. White, supra; 2 Appleman, "Insurance Law & Practice," sec. 6895, p. 831.

McCULLEN, J.

This proceeding was instituted by appellant in the Probate Court of St. Louis County, Missouri, for the purpose of procuring an order of that court discharging it from future liability under a curator's bond which it executed for respondent estate in the sum of $30,000 and filed in said court. The petition was heard by the probate judge and denied, whereupon an appeal was taken to the Circuit Court of St. Louis County, where it was tried by the court resulting in a judgment denying the relief sought. Appellant appealed to the Supreme Court but that court held that it did not have jurisdiction of the cause and transferred it to this court. [See National Surety Corporation v. Burger's Estate (Mo.), 183 S.W. (2d) 93.]

Appellant's "Petition for Discharge From Future Liability Under Bond of Co-Curator and Co-Curatrix" is...