State v. Globe Indemnity Co.

• Citation: 29 S.W.2d 743
• Decision Date: 16 June 1930
• Docket Number: No. 16649.,16649.
• Parties: STATE ex rel. PARK NAT. BANK v. GLOBE INDEMNITY CO. et al.
• Court: Court of Appeal of Missouri (US)

29 S.W.2d 743

STATE ex rel. PARK NAT. BANK v. GLOBE INDEMNITY CO. et al.

No. 16649.

Kansas City Court of Appeals. Missouri.

June 16, 1930.

Appeal from Circuit Court, Jackson County; J. Francus O'Sullivan, Special Judge.

"Not to be officially reported."

Suit by the State of Missouri, on the relation and to the use of the Kansas City Title & Trust Company, against the Globe Indemnity Company and Raymond L. Comstock, in which the Park National Bank was substituted as relator. Judgment for plaintiff, motion for new trial overruled, and defendants appeal.

Reversed and remanded, with directions.

Lathrop, Crane, Reynolds, Sawyer & Mersereau, of Kansas City, for appellants.

John F. Cell and Donald W. Johnson, both of Kansas City, for respondent.

BARNETT, C.

This is an action to recover upon the bond of a notary public. The suit was instituted by the Kansas City Title & Trust Company, but before trial the plaintiff assigned its claim for a valuable consideration to the Park National Bank, and by leave of court, but over the objections and exceptions of defendant, Park National Bank was substituted as relator. The petition alleged negligence upon the part of the notary. Except for the substitution, no issue arises upon the pleadings which does not also arise upon the evidence, and we therefore omit the pleadings from this statement. The cause was tried to the court sitting as a jury, and at the close of all the evidence the defendants asked a written declaration of law that plaintiff was not entitled to recover and that the verdict should be for defendants. This was refused, and the defendants then asked a declaration of law that, under the pleadings, the law, and the evidence, the verdict should be in favor of the plaintiff and against the defendants for nominal damages only. This was also refused.

The plaintiff requested the court to make findings of fact separate from the conclusions of law, and the court found that R. L. Comstock was a notary public and that Globe Indemnity Company was the surety upon the notary's bond; that on the 11th day of June, 1924, the notary certified that he took the acknowledgment of one W. T. Doerr to a deed of trust, purporting to convey all of lot four in Greenview, an addition in Kansas City, Mo., to one Carl E. Kimpton in trust for one James J. Reamer, to secure a real estate mortgage bond dated June 28, 1924, in the principal sum of $3,000, payable three years after date to the said Reamer; that the notary negligently and carelessly omitted to faithfully perform his duties as notary public; that W. T. Doerr did not appear before the notary nor execute or acknowledge the deed of trust, and that Doerr was not personally known to the notary. The court further found that John A. Cattanach became the owner of the real estate described in the deed of trust in 1919, and had been the owner of such property ever since; that neither the said John A. Cattanach nor his wife subscribed their names to a warranty deed which had been introduced in evidence and which purported to convey said real estate to W. T. Doerr, but that said deed and the acknowledgment thereof was a forgery.

The court found that the name of W. T. Doerr was a ficticious name used by some person unknown to the notary; that the Kansas City Title & Trust Company relied in part upon the notarial certificate of acknowledgment to the deed of trust, and relying thereon issued a guaranty title policy in the principal sum of $3,000, and that by reason of the falsity of the certificate of acknowledgment on the deed of trust the title company was obliged by the terms of its policy to pay the sum of $3,000 to the holder of the note which the deed of trust purported to secure; that the real estate mortgage bond and deed of trust purporting to secure the payment thereof were worthless, and that the deed of trust did not constitute a valid lien upon the real estate described therein; that there was no such person as W. T. Doerr, and that there was no such person as James J. Reamer. There was substantial evidence to support all of the above findings of fact.

The court further made the following declaration:

"The court finds from the evidence in this case that the proximate cause of the loss and damages herein was the false certificate of acknowledgment endorsed on the deed of trust mentioned in evidence by the defendant, Comstock, that is to say that but for such false certificate of acknowledgment the loss and damage herein would not have happened."

There was judgment for plaintiff for substantial damages, a motion for new trial was filed and overruled, and defendants have appealed.

Opinion.

Appellant contends that a demurrer to the evidence should have been sustained because the petition states, and the evidence shows, that the plaintiff is an assignee, and the cause of action is not assignable. It is argued that an action upon a notary's bond is a tort action, personal in nature, and therefore not assignable. It is also contended that the right of action upon the bond is created by statute, and the statute provides that the bond "may be sued on by any person injured"; that a statutory right of action given to a particular class of persons is limited to that class, and an action thereon cannot be maintained by any person not in the class; that an assignee, not being mentioned in the statute, may not maintain the action. A suit upon a notary's bond is an action ex contractu. The notary might be held liable for the improper performance of his official duties the same as any other officer even if no bond were required; but by the bond the notary and his sureties entered into a contract with the state of Missouri binding themselves in the sum of $5,000 upon condition that the notary will faithfully perform the duties of his office. This bond is made for the benefit of any and every person injured by a breach of the covenants therein contained. Debt and covenant are the appropriate actions upon such bonds. 9 C. J. 82.

It is unnecessary for us to decide whether a cause of action upon a bond to hold another harmless on account of damages sustained by reason of the commission of a tort may be assigned if the cause of action for the tort is not assignable, because we think the cause of action for the notary's negligence in this case was assignable. The general rule in this state is that any cause of action is assignable which survives and passes to the personal representatives of a decedent. Snyder v. Wabash, St. Louis, etc., R. Co., 86 Mo. 613; Remmers v. Remmers, 217 Mo. 541, 117 S. W. 1117; McGinnis v. McGinnis, 274 Mo. 285, 202 S. W. 1087; Norton v. Reed, 281 Mo. 482, 221 S. W. 6; Sherman v. Insurance Co., 291 Mo. 139, 236 S. W. 634. At common law a cause of action for tort did not survive, but our statute provides that for all wrongs done to property rights or interests of another, for which an action might be maintained against the wrongdoer, such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, and, after his death, against his executor or administrator, in the same manner and with like effect, in all respects, as actions founded upon contract. Section 97 R. S., 1919. It is also provided that "this section shall not extend to actions for slander, libel, assault and battery or false imprisonment, nor to actions upon the case for injuries to the person of the plaintiff, or to the person of the testator or intestate of any executor or administrator. Section 98, R. S., 1919. Were it not for section 98, all causes enumerated would survive under section 97. The cause of action for the negligent performance of the duty of a notary public does not come within any of the exceptions contained in section 98. It is therefore an assignable cause of action, because our courts have held that the effect of the statute which changes the rule as to survival is to change the rule to the same extent as to assignability. Snyder v. Wabash, St. Louis, etc., R. Co., supra.

The contention that because the statute points out the particular class to whom the right to sue is given, without mentioning assignees, has the effect of excluding the right of assignees to sue is based upon the case of Missouri State Highway Commission v. Coopers Construction Service Co., 220 Mo. App. 401, 286 S. W. 736, 739. In that case the Springfield Court of Appeals held that the assignee of a subcontractor could not maintain a suit upon a contractor's bond given under the provisions of section 1040, R. S., 1919. That statute requires that every contractor for public work shall execute a bond to the state, county, city, town, township, school, or road district, as the case may be, conditioned for the payment of materials used in such work, and for the labor performed in such work, whether by subcontractor or otherwise. Section 1041 provides that every person furnishing material or performing labor, either as an individual or as a subcontractor, shall have the right to sue upon such bond. It will be noticed that section 1041, in mentioning those who might maintain the action, names every person to whom the cause of action might be held to accrue under section 1040, construed without reference to the succeeding section. In this respect it is like the statute governing actions upon a notary's bond. The court held that there was no authority in the statute for a suit upon the bond by the assignee of a subcontractor, and that if the right exists it must be found elsewhere than in the statute; that the statute conferred a mere personal privilege or right upon those named, which privilege was not assignable. In support of this doctrine the court cited the case of Erath & Flynn v. Allen & Son, 55 Mo. App. 107, and also cited cases which the court said established the rule that the lien given by section 7261, R. S., 1919, for certain railroad work and mechanic's liens were not assignable prior to the...