Nofsinger v. Hartnett

• Decision Date: 31 October 1884
• Citation: 84 Mo. 549
• Parties: NOFSINGER et al., Appellants, v. HARTNETT, Administrator.
• Court: Missouri Supreme Court

84 Mo. 549

NOFSINGER et al., Appellants,

v.HARTNETT, Administrator.

Supreme Court of Missouri.

October Term, 1884.

Appeal from St. Louis Court of Appeals.

AFFIRMED.

B. D. Lee for appellant.

The judgment of an appellate court, by operation of law, becomes the judgment of the court below, and, in its force and effect, is as binding and conclusive upon that court as though it had been rendered of its own motion.Archer v. Hart et al.,5 Fla. 234;Gardner v. Barney, 24 HowardPr. 467;Robinson v. Plimpton,25 N. Y. 487;Hinckley v. Kreitz,58 N. Y. 583, 587;Smith v. Crouse,24 Barb. 433;Babbitt v. Finn,101 U. S. 7;Bayliss on Sureties, p. 172; Brandt on Suretyship, par. 401; Cook v. King, 7 Bradwell 549;Crane v. Weymouth,54 Cal. 476.

E. T. Farish for respondent.

(1) An appeal bond is like any other contract, and must be construed by the same principles of law.Obviously the bond had no reference to the affirmance of the judgment by the Supreme Court; but, on the contrary, was carefully worded to cover any action taken by the court of appeals, the appellate tribunal named in the condition of the bond.(2) Where the condition of the bond is not restricted to the action of the court of appeals, but general as to any judgment that might be rendered by any appellate tribunal, a different rule would prevail.Babbitt v. Finn,101 U. S. 7;Smith v. Crouse,24 Barb. 435;Gardner v. Barney, 24 HowardPr. 467;Robinson v. Plimpton,25 N. Y. 487.(3) Because the Supreme Court reversed the judgment of the court of appeals, it does not follow that the judgment of the former court became the judgment of the latter, and thereby affirmed the judgment of the circuit court, and the case of Archer v. Hart.5 Fla. 234, cited by appellant, supports such doctrine.(4)Respondent's answer to the claim made by the plaintiff upon him is, “ non in hoc federe veni;”A party cannot be construed into a liability in which he never entered.(5)This case must be determined by the construction given to the language employed in the bond sued on, and the meaning of the terms of the bond are as above given and hereinbefore mentioned.25 N. Y. 488;Fenwick v. Rives, 4 Stewart & Porter (Ala.) 269; Burks v. Brown, 4 Bibb (Ky.) 572;Morgan v. Selman,6 Ga. 440.(6)The legislature held the same view, and amended the law, changing the condition of the bond (R. S., sec. 3713), prescribing a different and broader condition in appeal bonds from that previously required.Laws 1871, p. 50, sec. 45.

SHERWOOD, J.

Plaintiff recovered judgment in the St. Louis circuit court against John Ring, and he appealed to the St. Louis court of appeals, giving James Reilly, Hartnett's intestate, as one of his sureties on his bond, which was conditioned as follows: “The condition of the above obligation is such, that whereas, John Ring has appealed from the judgment rendered against him, and in favor of F. B. Nofsingeret al. in the circuit court of St. Louis county; now said appellant shall prosecute his appeal with due diligence to a decision in the St. Louis court of appeals, and shall perform such judgment as shall be given by the St. Louis court of appeals, or such as the St. Louis court of appeals may direct the circuit court of St. Louis county to give, and if the judgment, or any part thereof, be affirmed, will comply with and perform the same so far as it may be affirmed, and pay all damages and costs which may be awarded against him by the St. Louis court of appeals, then this obligation to be void, otherwise to remain in full force and effect.”

When the cause reached the court of appeals the judgment was reversed and the cause remanded, but on plaintiff's appeal to the Supreme Court the judgment of the court of appeals was reversed and that of the circuit court affirmed.Since that time Reilly has deceased, and Hartnett has become his administrator.This action was brought against the administrator on the bond mentioned and on proof of the facts already stated, the circuit court found in favor of, and rendered judgment for defendant, and on appeal this judgment was affirmed by the court of appeals.The only question, therefore, is the correctness of the ruling which denied the plaintiff recovery on the bond in suit.In other words, the result of this suit determines whether a surety having entered into a bond conditioned that if the judgment of the trial court be affirmed by a certain and named court to which alone the cause is appealed, and that court reverses the judgment appealed from, such surety is bound or affected by the judgment of a higher court, not named or referred to in such bond.The familiar rule respecting the restricted liability of a surety, is so firmly established, so thoroughly imbedded in the very fundamentals of the law, that it would seem at first blush that no other conclusion than that reached by the circuit court and court of appeals, would conform to that well known rule.And unless it be made to appear that the liability of a surety on the conditions of an appeal bond, differs from his liability on any other contract which he may make, then that liability is to be determined and settled, and only to be determined and settled, by the rule prevailing in the ordinary contract of suretyship.

What is that rule?None other than this: “That he is the favorite of the law, and has a right to stand upon the strict terms of his obligation.”Brandt on Suretyship, sec. 97 and cases cited; Baylies on Sureties, 144, 145, 260, and cases cited.In the case of Ludlow v. Simond, 2 Caines Cases 1, the chancellor in delivering the opinion in the court below, had ruled in favor of the surety, remarking: “A surety cannot be carried beyond his contract; the contract made by the parties must be judged of and not another substituted in its stead; it cannot be varied without his consent, and a surety for definite engagements shall not be extended to an indefinite one.”2 Term Rep. 372;7 Term Rep. 256;2 Bro. Ch. Cas. 579;2 Ves., Jr., 540.And Spencer, J., on the hearing of the appeal, when the decree of the chancellor was affirmed, said: “The authorities on this subject are very uniform; they speak a language not to be misunderstood, and, without detaining the court by an enumeration of them, I am fully justified by those cited, in saying that, both in law and equity, contracts involving the rights of sureties, will so far as respects them, receive a more rigid and less liberal construction, than between the original contracting parties.”And in the same case, Kent, C. J., in speaking of the same topic, said: “It is a well settled rule, both at law and in equity, that a surety is not to be held beyond the precise terms of his contract, and, except in certain cases of accident, mistake, or fraud, a court of equity will never lend its aid to fix a surety beyond what he is fairly bound to at law.This rule is founded on the most cogent and salutary principles of public policy and justice.In the complicated transactions of civil life, the aid of one friend to another, in the character of surety or bail, becomes requisite at every step.Without these constant acts of mutual kindness and assistance, the course of business and commerce would be prodigiously impeded and disturbed.It becomes, then, excessively important to have the rule established, that a surety is never to be implicated beyond his specific engagement.Calculating upon the exact extent of that engagement, and having no interest or concern in the subject matter for which he is surety, he is not to be supposed to bestow his attention to the transaction, and is only to be prepared to meet the contingency, when it shall arise, in the time and mode prescribed by his contract.The creditor has no right to increase his risk without his consent; and cannot, therefore, vary the original contract, for that might vary the risk.”

And Story, J., in Miller v. Stewart,9 Wheat. 680, in discussing the same subject, said: “Nothing can be clearer both upon principle and authority, than the doctrine that the liability of a surety is not to be extended by implication beyond the terms of his contract.To the extent and in the manner, and under the circumstances pointed out in his obligation, he is bound, and no further.It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit.He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal.”So also in Lang v. Pike,27 Ohio St. 498, Ashburn, J., said: “No principle is more firmly settled in this state than this, that sureties may stand upon the very terms of a statutory bond or undertaking.So clearly has this doctrine been announced and acted upon, that it may be regarded as entering into the condition of such an undertaking, that it will not be extended by the courts beyond the necessary import of the words used.It will not be implied that the surety has undertaken to do more, or other, than what is expressed in such obligation.”And in that case the learned judge quotes with approval the remarks of Reed, J., in the case of State v. Medary,17 Ohio 565, where he says: “The bond speaks for itself, and the law is that it shall so speak, and that the liability of the sureties is limited to the exact letter of the bond.Sureties stand upon the words of the bond, and if the words will not make them liable, nothing can.There is no construction, no equity against sureties.If a bond cannot have effect according to its exact words, the law does not authorize the court to give it effect in some other way in order that it may prevail.”Lang v. Pike, supra, was one where the undertaking for appeal reads: “Now, therefore, I, L. H. Pike, of Toledo, do hereby, pursuant to the statute in such case made and provided, promise and undertake that the said appellants, if judgments be adjudged against them on the appeal, will satisfy...