Smith v. Easter

• Decision Date: 10 March 1917
• Docket Number: 20,409
• Citation: 166 P. 510,101 Kan. 245
• Court: Kansas Supreme Court
• Parties: L. C. SMITH, doing business as T. G. SMITH & SON, v. C. E. EASTER et al., Appellees, and F. H. WOODBURY, Appellant

166 P. 510

101 Kan. 245

L. C. SMITH, doing business as T. G. SMITH & SON, v. C. E. EASTER et al., Appellees, and F. H. WOODBURY, Appellant

No. 20,409

Supreme Court of Kansas

March 10, 1917

July 7 1917.

Decided July, 1917.

Appeal from Osage district court; ROBERT C. HEIZER, judge. Opinion on rehearing filed July 7, 1917. Reversed. (Original opinion of affirmance filed March 10, 1917, but not reported.)

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. BUILDING CONTRACT--Indemnity Bond--Real Party Contracting. C. E. Easter contracted under the name of C. E. Easter & Co. to build a residence for F. H. Woodbury, and gave bond signed by C. E. Easter & Co., C. E. Easter, R. H. Agard, and The United States Fidelity & Guaranty Company. Held, that the bond was the bond of C. E. Easter.

2. SAME--Indemnity Bond--Surety's Name Not Recited in Bond--Liability of Such Surety. In the bond described in the first paragraph of this syllabus, C. E. Easter & Co. was named as principal and The United States Fidelity & Guaranty Company as surety. The name of R. H. Agard was not recited in the bond. Held, that R. H. Agard was a surety on the bond.

3. APPEAL--Cause Reversed with Directions to Trial Court. Under the circumstances disclosed in the opinion, and to prevent an injustice being done, the judgment of the trial court is reversed, and that court is directed to ascertain certain facts and to render judgment accordingly.

A. K. Stavely, of Lyndon, R. M. Hamer, and H. E. Ganse, both of Emporia, for the appellant.

T. F. Garver, and Edwin A. Austin, both of Topeka, for the appellees.

Marshall J. Marshall, J. dissenting. Johnston, C. J. West, J. concurs in the dissent.

OPINION OPINION ON REHEARING.

MARSHALL, J.:

An opinion reversing the judgment of the trial court in this action was delivered on March 10, 1917. A petition for rehearing was filed. That petition showed that the result reached by this court was based on a misapprehension of the facts disclosed by the evidence. For this reason the opinion was not published and a rehearing was granted.

A number of parties sought to foreclose mechanic's liens on property owned by F. H. Woodbury. R. H. Agard, one of the defendants, obtained judgment against C. E. Easter for the sum of $ 863.77, which judgment was declared to be a lien on the premises of F. H. Woodbury. From that judgment Woodbury appeals.

C. E. Easter, under the name of C. E. Easter & Co., contracted with Woodbury to build a dwelling house on Woodbury's property for about $ 8000, and gave bond for $ 7250 with C. E. Easter & Co. named as principal and The United States Fidelity & Guaranty Company as surety, signed by C. E. Easter & Co., C. E. Easter, R. H. Agard, and The United States Fidelity & Guaranty Company. Neither the name C. E. Easter nor the name R. H. Agard appeared in the bond in any way, except in the signatures at the end thereof. The bond contained, among others, the following recitals:

"Whereas, said principal has entered into a certain written contract with the obligee, to construct at his own proper cost and expense, do all the work and furnish all the material for the proper construction and completion of a two story and basement frame residence on a farm owned by F. H. Woodbury, in Osage county. . . .

"Now, therefore, the condition[s] of the foregoing obligation is such that if the said principal shall well and truly indemnify and save harmless the said obligee from any pecuniary loss resulting from the breach of any of the terms, covenants and conditions of the said contract on the part of the said principal, to be performed, then this obligation shall be void; otherwise to remain in full force and effect in law."

Agard filed a cross-petition for the foreclosure of the mechanic's lien held by him. To this cross-petition Woodbury answered, and as a defense set up the bond signed by Agard, and alleged that $ 5700 had been paid on the contract and that claims and mechanic's liens had been filed amounting to $ 4077.51, among which was Agard's lien.

The allegations of Woodbury's answer were denied by Agard. The sum of $ 863.77, principal and interest, was due from Easter to Agard for materials furnished by Agard and put into the dwelling house, for which materials Agard filed his mechanic's lien.

1. Agard contends that he is not liable on the bond for any failure of C. E. Easter to perform the contract, for the reason that Agard was not surety for C. E. Easter, but was surety for C. E. Easter & Co. The evidence disclosed that C. E. Easter contracted under the name of C. E. Easter & Co.; that there was no such company or corporation as C. E. Easter & Co.; and that C. E. Easter was the real party who contracted to build the residence for Woodbury and who gave the bond for the faithful performance of the contract. The purpose for which the bond was given was to secure the performance of the contract made by C. E. Easter under the name of C. E. Easter & Co. That purpose should not be defeated by the use of different names.

2. Agard contends that he is a stranger to the bond because his name does not appear in the body of the instrument, either as principal or as surety, and argues that for that reason he is not liable thereon. Why did Agard sign the bond? He did not sign as a witness. It does not appear that his name was accidentally placed thereon; that his signature was procured by fraud; nor that he signed the bond by mistake. Only one reason can be given for Agard's signing the bond, and that reason is that he intended to become liable as surety thereon. According to the great weight of authority, it was not necessary that Agard's name appear in the body of the bond. In section 8, page 51 of 4 R. C. L., the author says:

"It is not necessary, however, that the names of the obligors should appear in the body of the instrument. If the obligors, in witness of their obligation to perform certain covenants and conditions, have affixed their hands and seals to the bond, that is sufficient to bind them."

A number of cases are there cited which fully support the...