Standard Oil Co. v. Marvill
| Decision Date | 24 November 1925 |
| Docket Number | 36981 |
| Citation | 206 N.W. 37,201 Iowa 614 |
| Parties | STANDARD OIL COMPANY, Appellee, v. L. H. MARVILLE et al., Appellants |
| Court | Iowa Supreme Court |
REHEARING DENIED MARCH 12, 1926.
Appeal from Polk District Court.--JOSEPH E. MEYER, Judge.
FROM a ruling on a motion to set aside default and judgment the defendant United States Fidelity & Guaranty Company appeals.
Affirmed.
Miller Kelly, Shuttleworth & McManus, for appellants.
Nourse & Nourse, for appellee.
DE GRAFF, J.
I.
The trial court denied the motion of the defendant United States Fidelity & Guaranty Company to set aside a default and judgment entered against it in favor of the plaintiff. The ruling is the provocation for this appeal. No other question is presented. These are the facts:
An action at law was instituted by plaintiff, to recover $ 1,978.69 for oil, gasoline, and lubricants furnished to the defendant L. H. Marvill, who was under contract with the board of supervisors of Carroll County, Iowa, to haul and spread gravel on Section A of Federal Aid Project No. 154, Carroll County, Iowa. The United States Fidelity & Guaranty Company signed, as surety, a bond to secure the performance of said contract in conformity to the conditions prescribed by Section 1, Chapter 347, Acts of the Thirty-eighth General Assembly.
The verified petition alleged the making of the contract, the execution of the bond, the furnishing of material to the contractor, the failure of the contractor to pay, and that a claim had been filed with the auditor of Carroll County by the plaintiff. To the petition there were attached an itemized statement of account and a copy of the surety bond.
The petition was filed November 23, 1923, for the January, 1924, term of court. A default judgment was entered June 16, 1924, which was at the close of the third, or May, term of court following the commencement of the action. At the same term of court, the defendant company filed its motion to set aside the default, together with an affidavit of merit, and also filed its answer, denying liability.
The motion to set aside the default and judgment is predicated on an alleged oral agreement between the agent of the defendant surety and the attorney for the plaintiff. The material recital therein is denied by plaintiff. Mr. White (defendant's agent) in his affidavit stated:
"Mr. Nourse told me that he would not take any default and judgment against the United States Fidelity & Guaranty Company without notifying us, and it was not necessary for us to take any action in the matter until we heard from him."
Mr. Nourse (plaintiff's attorney) in his affidavit said:
The motion and the resistance filed thereto presented a direct conflict, and the trial court was compelled to rule. It was upon the defendant to establish a satisfactory excuse for his default, as he was duly and legally noticed into court. His only excuse is based on an alleged understanding which he had with plaintiff's attorney.
An agreement of this character, orally made, and not communicated to the court, is entitled to little favor. Dixon v. Brophey, 29 Iowa 460. Furthermore, the trial court was privileged to take into consideration the provisions of statute which permit an attorney to bind his client to any agreement in respect to any proceeding within the scope of his proper duties and powers, but with this limitation:
"No evidence of any such agreement is receivable, except the statement of the attorney himself, his written agreement signed and filed with the clerk, or an entry thereof upon the records of the court." Section 10922, Paragraph 2, Code of 1924.
An appellate court, under the circumstances of this case, does not ordinarily interfere with the finding of the trial court. It is only in exceptional cases that this court will consent to sit in judgment "upon the comparative veracity of counsel in matters which might easily have been removed from the possibility of doubt by making them of record or reducing them to writing." Ronayne v. Hawkeye Com. Men's Assn., 162 Iowa 615, 144 N.W. 319.
We are not disposed to disturb the finding for the further reason that a large discretion is reposed in the trial court. True, we recognize a stronger presumption in favor of the correctness of the trial court in setting aside a default than in overruling a motion of this character. McMillan v. Osterson, 191 Iowa 983, 183 N.W. 487. The finding of the trial court in the instant case was the determination of a fact question under conflicting evidence, and it stands as the verdict of a jury. Mogelberg v. Clevinger, 93 Iowa 736, 61 N.W. 1092; Byrnes v. American Mut. F. Ins. Co., 114 Iowa 738, 87 N.W. 699.
It may be said further that there was no admissible evidence of the agreement, other than that contained in the affidavit of defendant's attorney. However, there are other considerations. The claim of the plaintiff had been left standing unpaid for several months. The company had given a bond for the payment of this claim. The work for which plaintiff furnished the materials had been completed, and the statute of limitations was about to find operation. In fact, the action had been commenced within a few days of the period fixed by the statute. The defendant's agent was so informed, and stated to plaintiff's attorney, at the time of the alleged conversation, that he "guessed" that the commencement of the action was all that plaintiff could do. He further assured the plaintiff that the defendant company had expected to settle the claim before that time, and believed it would soon be settled.
Under the facts and circumstances disclosed, the sworn statement of the plaintiff's attorney is the more reasonable and believable.
II. We now turn to the defense as pleaded by the defendant surety in its answer. It is therein alleged that, under the terms of the bond executed by the surety to secure the performance of the contract, no liability arises to the plaintiff on account of the goods, wares, and merchandise which the plaintiff claims to have furnished to the contractor, and that "said claim is not secured by said bond."
It is true that the obligation of the contractor was not enhanced by the giving of the statutory bond. The liability of the...
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