Texas Co. v. Wax

• Decision Date: 03 March 1931
• Parties: THE TEXAS COMPANY, A CORPORATION, APPELLANT v. DAVID WAX AND SOUTHERN SURETY COMPANY OF NEW YORK, A CORPORATION, RESPONDENTS
• Court: Missouri Court of Appeals

36 S.W.2d 122

226 Mo.App. 850

THE TEXAS COMPANY, A CORPORATION, APPELLANT v. DAVID WAX AND SOUTHERN SURETY COMPANY OF NEW YORK, A CORPORATION, RESPONDENTS

Court of Appeals of Missouri, St. Louis

March 3, 1931

Rehearing Denied 226 Mo.App. 850 at 860.

Appeal from the Circuit Court of the City of St. Louis.--Hon Charles W. Rutledge, Judge.

Reversed and remanded.

Bryan Williams, Cave & McPheeters for appellant.

(1) The bond sued upon must be construed in such a way as to give a reasonable interpretation to its terms and language according to the intent of the parties as disclosed by the instrument read in the light of surrounding circumstances and the purpose for which it was made. Brandt on Suretyship (1 Ed.), Sec. 80; Pingrey on Suretyship (2 Ed.), page 77; Beers v. Wolf, 116 Mo. 179; Martin v. White, 128 Mo.App. 117; Board of Ed. v. F. & G. Co., 155 Mo.App. 109; School District v. McClure, 224 S.W. 831. (2) The rule of strictissimi juris is relaxed with respect to compensated sureties upon either a statutory or common-law bond. School Dist. v. McClure, 224 S.W. 831; Lackland v. Renshaw & Surety Co., 256 Mo. 133; Kansas City ex rel. v. Casualty Co., 219 Mo.App. 283. (3) A construction which gives a surety bond or contract validity rather than renders it void is to be preferred where there is ambiguity and either construction could reasonably be applied. Bridge et al. v. Welda State Bank, 292 S.W. 1079; 2 Williston on Contracts, p. 620; Bank of Commerce v. Flanagan Mills et al., 268 Mo. 547; Lamar Water & E. L. Co. v. Lamar, 128 Mo. 188; Kansas City ex rel. v. Casualty Co., 219 Mo.App. 283. (4) To recover upon an appeal bond filed in an unlawful detainer action it is unnecessary for damages to have been assessed in the appellate court. Bernecker v. Miller, 44 Mo. 127; Hastings v. Hennessey, 58 Mo.App. 205.

George Eigel for respondent, Southern Surety Company. James T. Roberts, of counsel.

(1) The obligation of the surety cannot be extended beyond the letter of the bond. He has a right to stand upon the strict terms of his contract, and is bound only to the extent and in the manner pointed out in his obligation. Reissaus v. Whites, 128 Mo.App. 135; Johnson v. Musser, 25 S.W.2d 520; Stultz v. Lentin, 220 Mo.App. 840, l. c. 844, 395 S.W. 487; State ex rel. v. Mining Co., 169 Mo.App. 79, 154 S.W. 168; Moore v. Title Guar. Tr. Co., 151 Mo.App. 256; Tittman v. Green, 108 Mo. 22. (2) The bond being plain and unambiguous on its face must be construed to bind the surety company only to the extent of the express terms of the bond. Reissaus v. Whites, 128 Mo.App. 135, and cases cited under Point 1. (3) The court will not undertake, by its construction, to make a new contract between the appellant and the respondent Southern Surety Company, but will leave them just in the position where their contract places them by its express terms. See cases cited under Point 1. (4) As the verdict and judgment in this case was for possession of the premises only, the St. Louis Court of Appeals could do no more than affirm the judgment of the circuit court. Under the plain terms of the bond the Southern Surety Company was liable only for such rents and profits, damages and costs as might be adjudged against Wax in the St. Louis Court of Appeals. As no judgment for rents and profits, damages and costs was adjudged against David Wax in that case, there is no liability on the part of the Southern Surety Company to respondent in damages that they are seeking to recover. Abernathy v. Schembra, 231 S.W., l. c. 1066; Bauer v. Cabanne, 105 Mo., l. c. 117.

SUTTON, C. Haid, P. J., and Becker and Nipper, JJ., concur.

OPINION

SUTTON, C.

This is an action on a supersedeas bond.

The petition alleges that plaintiff, the Texas Company, is a corporation organized under the laws of the State of Delaware, and authorized to do business in the State of Missouri; that defendant, Southern Surety Company of New York, is a corporation organized under the laws of New York, and engaged in the business of executing indemnity and surety bonds for hire; that on February 9, 1928, plaintiff instituted an action of unlawful detainer against defendant, David Wax, before a justice of the peace in the City of St. Louis, for the recovery of certain premises in said city unlawfully detained by said defendant; that on February 14, 1928, said action in unlawful detainer was removed to the Circuit Court of the City of St. Louis by certiorari; that upon the trial of said action of unlawful detainer in said circuit court, on March 19, 1928, plaintiff had judgment for the recovery of the possession of said premises; that on May 5, 1928, the St. Louis Court of Appeals, on application of said Wax, made an order granting said Wax a writ of error from said judgment, and also granting a stay of execution of said judgment upon the filing of a supersedeas bond in the penal sum of $ 4,000; that said supersedeas bond in said amount was filed on said day in said St. Louis Court of Appeals, duly executed by said Wax as principal, and said Southern Surety Company as surety; that said bond was approved by said court and that said stay of execution and order of supersedeas thereupon became in full force and effect; that said bond provided that said Wax, as principal, and said Southern Surety Company, as surety, were held and firmly bound unto the plaintiff in the sum of $ 4,000, upon the condition that, whereas the said Wax had applied to the St. Louis Court of Appeals for writ of error and stay of execution on the said judgment of the Circuit Court of the City of St. Louis, Missouri, hereinbefore described, "If the said David Wax shall prosecute the said writ of error with effect and without delay, neither commit nor suffer to be committed, any waste or damage on the premises whereof restitution is adjudged, and pay all rents and profits, damages and costs that may be adjudged against him, and shall otherwise abide the judgment of the St. Louis Court of Appeals in said cause, then this obligation shall be void, otherwise to remain in full force and effect;" that upon the execution and approval of said bond and by virtue of the said order of supersedeas and stay of judgment entered by said St. Louis Court of Appeals, the said Wax continued in possession of the premises heretofore described, and that on March 5, 1929, the said St. Louis Court of Appeals entered its judgment affirming the judgment of the Circuit Court of the City of St. Louis in said cause, and thereafter overruled the motion for rehearing of said Wax, and that on April 17, 1929, the said Wax surrendered possession of said premises to the plaintiff; that under said order of supersedeas and stay of judgment entered by said St. Louis Court of Appeals and under said bond hereinabove described, the said Wax remained in possession of said premises from March 19, 1928, until April 17, 1929, a period of approximately thirteen months, and that the rents and profits of said premises for said period were and are of the reasonable value of $ 250 per month, and that demand has heretofore been made upon said Wax and upon said Surety Company for the payment of said rents and profits of said premises during said period at the rate of $ 250 per month, but that no part thereof has been paid, and that plaintiff has been damaged in the breach of said bond in the sum of $ 3,250; and prays that plaintiff may have judgment for the penal sum of said bond, and that execution issue for the sum of $ 3,250, together with interest thereon from the date of the filing of the petition.

The defendants filed separate demurrers to the petition. The demurrers were sustained by the court, and the plaintiff declining to plead further, judgment was given for the defendants, from which judgment plaintiff has appealed to this court.

Plaintiff insists here that the court erred in sustaining the demurrers to the petition; whereas defendants insist that the petition does not state facts sufficient to constitute a cause of action, and that the demurrers were, therefore, properly sustained.

The recognizance sued on was given to obtain a supersedeas, or stay of execution of the judgment of the circuit court, in an unlawful detainer action. It conforms in all respects to the recognizance prescribed by the statute. Section 2518, Revised Statutes 1929, provides that in actions of unlawful detainer no appeal to the appellate or supreme courts shall operate as a stay of execution, and that no supersedeas shall be awarded to the party in possession, unless the conditions of the recognizance contain the substance of the conditions prescribed in case of an appeal by a defendant from a judgment of a justice of the peace in such an action. Sections 2498 and 2501, Revised Statutes 1929, provide that in case of an appeal by a defendant from a judgment of a justice of the peace in an action of unlawful detainer, such defendant shall enter into a recognizance to the complainant, conditioned that he shall prosecute his appeal with effect and without delay, neither commit, nor suffer to be committed, any waste or damage on the premises whereof restitution is adjudged, and pay all rents and profits, damages and costs that may be adjudged against him, and otherwise abide the judgment of the circuit court in the cause.

The conditions of the recognizance sued on in the present case conform precisely to the conditions thus prescribed by sections 2498 and 2501, with changes appropriate for a recognizance given on a writ of error issued on a judgment of the circuit court.

The defendants' position is that no rents and profits are recoverable on this recognizance because no rents and profits were adjudged by the judgment of the circuit court in the unlawful detainer action, on which the writ...