State ex rel. Hardy v. Farris

• Decision Date: 07 March 1932
• Citation: 47 S.W.2d 198,226 Mo.App. 1007
• Parties: STATE OF MISSOURI EX REL. SARAH JANE HARDY, RESPONDENT, v. JOHN M. FARRIS AND MASSACHUSETTS BONDING & INSURANCE COMPANY, APPELLANTS
• Court: Missouri Court of Appeals

47 S.W.2d 198

226 Mo.App. 1007

STATE OF MISSOURI EX REL. SARAH JANE HARDY, RESPONDENT, v. JOHN M. FARRIS AND MASSACHUSETTS BONDING & INSURANCE COMPANY, APPELLANTS

Court of Appeals of Missouri, Springfield

March 7, 1932

Appeal from the Circuit Court of Scott County.--Hon. Frank Kelly Judge.

AFFIRMED.

Judgment affirmed.

Leahy Saunders & Walther and J. L. London for appellant Massachusetts Bonding and Insurance Co.

Ray B. Lucas for appellant, John M. Farris.

(1) The undisputed evidence in the case shows that the time of the performance of the obligation of the principal was extended by the plaintiff for a valuable consideration, to-wit, a promissory note in the sum of eleven hundred dollars ($ 1100). It was extended for a definite period, to-wit, until the following spring. It was extended without the surety's consent. Therefore, the surety was discharged. Stillwell v. Aaron, 69 Mo. 539; German Savings Ass'n v. Helmrich, 57 Mo. 100; Bank of Neelyville v. Lee, 193 Mo.App. 537; Bank of Senath v. Douglass, 178 Mo.App. 664; Westbay v. Stone, 112 Mo.App. 411; Bruegge v. Bedard, 89 Mo.App. 543; 50 C. J., p. 130, and numerous cases cited therein. (2) There was a full settlement between the principal of the bond and the guardian and his ward, and the rights of the ward, if any, were based upon the note which she accepted in payment and in settlement. This released the surety. Faulkner v. Faulkner, 73 Mo. 327; 8 C. J. 215, par. 351; (Cases cited under point 1 above.)

Ward & Reeves for respondent.

(1) No definite time was fixed, either by the bond or by law, as to when this final settlement would be made, and consequently when there would be a liability on this bond is not at a definite date. Final settlement depends not only upon the date when the ward becomes of age, but when the court dockets the case for final settlement, and when the four weeks notice is given, etc.; all of these make this bond not due at a definite and certain date, as are promissory notes, and therefore the continuance of a settlement with or without the consent of the ward does not discharge the surety. Section 430, R. S. 1929; Section 482, R. S. 1929; May v. May, 189 Mo. 425. (2) "A guardian's bond can only be discharged by the guardian paying over the money in his hands on final settlement." State ex rel. v. Greer, 101 Mo.App. 669; State ex rel. v. Branch, 134 Mo. 592. (3) To effect the discharge of a surety by an extension of time, the agreement must be supported by sufficient consideration. Section 239, 50 C. J. 145; Regan v. Williams, 185 Mo. 620; Main Street Bank v. Werner, 7 S.W.2d 723; Citizens Bank v. Hiltmeyer, 12 S.W.2d 516; Citizens Bank v. Douglas, 178 Mo. App., l. c. 689. (4) "Prejudice in fact is essential to the discharge of a compensated surety (such as the defendant Bonding Company in this case), by an extension of time; the rule of strictissimi juris being inapplicable to paid surety as respects an extension of time." Section 252, 50 C. J. 153; Maryland Casualty Co. v. River Co., 20 F.2d 514; U. S. F. & G. Co. v. McNulty Bros., 13 F.2d 78. (5) A note given is not payment unless made so by express agreement. Missouri State Highway v. Surety Co., 9 S.W.2d 92; Mutual Life v. McKennis, 15 S.W.2d 934, 48 C. J. 611.

BAILEY, J. Cox, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

This is a suit by a ward, after she had attained her majority, on the bond of her guardian John M. Farris, as principal, and the Massachusetts Bonding & Insurance Company as surety.

The petition sets forth that plaintiff is now of age; that when she was a minor of tender years, her mother died leaving her certain insurance money; that her father John M. Farris was appointed her guardian and curator by the probate court of Scott county, Missouri, which court directed said guardian to give bond in the sum of $ 4000; that said John M. Farris, as principal, and defendant Massachusetts Bonding & Insurance Company, as surety, made and executed said bond and the said John M. Farris took charge of plaintiff's said money and property and has had charge of same until the present time; that the said guardian has failed to account to her therefor or make any final settlement; that on the 15th day of February, 1927, the said guardian owed plaintiff the sum of $ 1166.04; that said guardian has breached said bond in that he has not well, truly and faithfully discharged his duties as guardian and that he justly owes her the sum of $ 1166.04, together with interest from the 15th day of February, 1927, for which plaintiff prays judgment.

Defendant, John M. Farris, filed a separate answer in which he alleged that on the 6th day of September, 1929, the said Sarah Jane Hardy was of age and on that date she and the defendant had a settlement of their accounts, and that in full settlement of all monies due her from him as guardian he gave her his note in the sum of $ 1100 and she receipted him therefor; that ever since said date she has held said note which was given in full settlement of all claims owing her by him as guardian; that after allowing all just credits, commission and set-offs, the $ 1100 note more than pays said plaintiff whatever amount was due her from said defendant.

The separate answer of the bonding company also sets up this alleged settlement and receipt given by plaintiff to the said John M. Farris, as a complete discharge and payment of its obligation.

Plaintiff's reply denies the note was given or accepted by her as a payment, but that she refused to accept same and that there has been no payment whatever on the amount due plaintiff from defendant John M. Farris; and further states that said note is, "herewith filed and tendered back to defendant."

The trial was held March 16, 1931, and resulted in a verdict and judgment for plaintiff in the sum of $ 1346.20. From this judgment both defendants have appealed to this court.

Error is assigned in the failure of the trial court to sustain appellants' separate demurrers to the evidence at the close of the whole case. The two demurrers will be considered together since both are based upon the same theory of law. The evidence must be considered in the light most favorable to plaintiff and every reasonable inference in her favor must be indulged. It is undisputed that no payment was made of the amount due plaintiff as shown by the last settlement of defendant John M. Farris, except certain minor items hereinafter referred to, unless the note and receipt mentioned in defendants' answers were such a settlement and payment. The only evidence in regard to the circumstances and understanding between plaintiff and her guardian at the time the note and receipt were executed and delivered, comes from the testimony of plaintiff, which is undisputed since the father was not present at the trial. The case hinges on this testimony which was, in part, as follows: "Sarah Jane Hardy, the plaintiff, testified that she was twenty-three years of age the day of the trial; that she was the daughter of John M. Farris; that she lived in Detroit, Michigan; that he was her guardian; that she was of age March 16, 1929; that he had not given her any money on this; that they talked about his paying her in September, 1929; that was after she was twenty-one; that he said he wasn't ready to settle; that he would be the following spring; that he wanted her to sign a paper until he got his building and loan to show to the court for an extension of time--.

"Q. Was there anything said about that being a payment? A. No.

"Q. Did you accept it as a payment? A. No, I did not.

"Witness identified an instrument marked 'Exhibit A.' She stated this was the note he gave her at the time of the conversation September 6th. At the time he gave her the paper marked 'Exhibit A' he said that was to show a record in court that she had given him an extension of time to make a settlement in court; when they first went there he told her that he owed her some money; that he would have settlement with the probate court; this was all she remembered; her father prepared the paper that says, 'One day after date I promise to pay to the order of eleven hundred and no hundred dollars?' This was the instrument he gave her at the time of the conversation; that there was another slip of paper she signed, but he said that was to show that he got an extension of time; there wasn't anything written on it, so she took his word for it--her own father."

On cross-examination she testified: "At the time she had the conversation with him, September 6th, her father told her he was not ready to settle; that he said he had to show the court that he had to have an extension or wanted an extension until spring; that was the reason he wanted the paper from her; that she was willing to let him have it and knew he was going to file that in court (Bill of Ex., p. 18); that if he did file it, it was done with her knowledge and consent until the building and loan was paid and then he was to make final settlement; that he said he wanted an extension of time; he couldn't make settlement then; that she was willing to give him an extension of time; that she gave it to him; that she took the note for that reason and signed a blank paper; that he did not tell her what he was going to put on there; that he didn't say he was going to put a receipt on there (Bill of Ex., p. 19); that she never took it up with the Massachusetts Bonding & Insurance Company, and asked their permission and consent to do that; that she didn't know who the bonding company was."

After this conversation with her father and the giving of the note by him she received a letter from him on January 15, 1930, which is as follows:

"Poplar Bluff, Mo.

"Dear Sarah:

"I received your letter the other day and note...