United States Fidelity & Guaranty Co. v. Yoder
| Decision Date | 29 September 1933 |
| Docket Number | 1799 |
| Citation | 46 Wyo. 293,25 P.2d 394 |
| Parties | UNITED STATES FIDELITY & GUARANTY CO. v. YODER, et. al. |
| Court | Wyoming Supreme Court |
APPEAL from the District Court, Laramie County; SAM M. THOMPSON Judge.
Action by the United States Fidelity & Guaranty Company against Benjamin F. Yoder and others. Judgment for defendants, and plaintiff appeals.
Judgment affirmed.
The cause was submitted for the plaintiff and appellant on the briefs of M. A. Kline, O. O. Natwick and A. D. Walton, of Cheyenne, Wyoming.
The court erred in permitting defendants to prove alleged conversations had with, or in the presence of defendant Mason on the theory that the knowledge of Mason was the knowledge of plaintiff. 2 C. J. 868; Andrews v. Coal Co. (Ind.) 168 N.E. 869; Herdan v. Hanson (Calif.) 189 P. 440; Booker v. Booker (Ill.) 70 N.E. 709. The interests of defendant Mason were antagonistic to the plaintiff. The court erred in the reception of testimony as to conversations had between defendants themselves and as to their intentions in signing the instrument sued on in plaintiff's second cause of action. The court erred in finding generally for the defendants Mason, Jones and Rouse and in rendering judgment in their favor. An agreement to indemnify another is an original agreement and therefore not within the statute of frauds. Smith on the Law of Fraud, Sec 326; Minnick v. Huff (Nebr.) 59 N.W. 795; Boyer v. Soules (Mich.) 62 N.W. 1000; Hartley v. Sanford (N. J.) 48 A. 1009; Tighe v. Morrison (N. Y.) 22 N.E. 164; Kessler v. Frazier (Ind.) 21 N.E. 552; Hawes v. Murphy (Mass.) 78 N.E. 108; Rose v Wollenberg (Ore.) 44 P. 382; Lerch v. Gallop (Calif.) 8 P. 322; Lingelbach v. Lukenbach (Wisc.) 170 N.W. 711; Resseter v. Waterman (Ill.) 37 N.E. 875; Burr v. Cross (Calif.) 86 P. 824. Defendants are bound by the terms of their written agreement and cannot be heard to allege a failure of consideration. 21 C. J. 1111; Stewart v. Metcalf, 68 Ill. 109; LePak v. Hedberg (Minn.) 213 N.W. 40; Red Wing Sewer Pipe Co. v. Donnelly (Minn.) 113 N.W 1; New Prague Flour Mill Co. v. Grain Co. (Mich.) 196 N.W. 890; Moore v. Earl (Calif.) 27 P. 1087; Ettelsohn v. Kirkwood, 33 Ill.App. 103; Minneapolis v. Street Railway Co. (Minn.) 133 N.W. 80; Bank v. U. S. F. & G. Co., 266 F. 495; Bank v. Trust Co. v. Bickford (Vt.) 122 A. 582. Defendants are bound by the terms and conditions of their bond which plaintiff accepted in good faith, without the knowledge of any conditions attached to its execution and delivery. Monona County v. Gray (Ia.) 206 N.W. 27; Pacific Mill & Timber Co. v. Company (Calif.) 219 P. 972; Copeland v. Association, 48 S.W.2d 845; Watkins v. Brund, 294 P. 1024; Smither v. Wackins Co. (Ky.) 4 S.W.2d 207; Byers v. Gilmore (Colo.) 50 P. 370; Benton County Bank v. Boddicker (Ia.) 75 N.W. 632; Baker County v. Huntingdon (Ore.) 79 P. 187.
The case was submitted for defendants Ayers, Yoder and Jones upon the brief of Kinkead & Pearson.
Mason was the sole agent of plaintiff in this transaction and knew how to carry out the instructions of plaintiff. Commercial Bank v. Hauf, 32 Wyoming 127. The evidence clearly shows that he received all of the correspondence and acted for plaintiff. Plaintiff always insisted that the directors should subscribe to the bond, which means that their names be attached to the foot thereof. When under such circumstances, the name of a party appears at any other place of the instrument than the foot thereof, it is always proper to inquire as to the purpose of the party who places his signature thereon at an irregular place. 29 Am. & Eng. Ency. of Law, 856; Love v. Harris (N. C.) 72 S.E. 150; Wildcat Branch v. Bell, 45 Ind. 213. The statute of frauds requires signatures to be at the end of the instrument. Leask v. Horton, 79 N.Y.S. 148; Atty. v. Clark (R. I.) 59 A. 395; James v. Patten, 6 N.Y. 12; In re Seamans' Estate (Calif.) 80 P. 700; Longhren v. Brownwell (Ia.) 101 N.W. 287. The only exception to the rule is where the statute does not require a signature to be subscribed to an instrument. 9 C. J. 14; Kenck v. Parchen (Mont.) 57 P. 94; 9 C. J. 141; Elliott v. Bellevue (Kan.) 107 P. 794. The point was discussed in Laramie Land Co. v. Hoffman, 30 Wyo. 238. The instrument itself refers to the "undersigned." The concern of the court is to make the contract express the intention of the parties. Wolfe v. Morgan (Cal.) 273 P. 64; Grieve v. Grieve, 15 Wyo. 358; 23 R. C. L. 329; McClintock v. Ayers, 36 Wyo. 132; Chandler Lumber Co. v. Radke (Wisc.) 118 N.W. 185. At the close of plaintiff's evidence, each of the defendants moved for a judgment of dismissal on twelve different grounds. The offer of guaranty was never accepted. The offer was made through Mason to plaintiff which required acceptance and notice thereof to be given before it could become binding on defendants. It never became an enforcible contract. The petition did not allege acceptance of guaranty and notice thereof and is therefore defective. Lawson v. Towns, 2 Ala. 375; McCollum v. Cushing, 22 Ark. 542; Kincheolor v. Holmes, 45 Am. Dec. 45; Merchants' National Bank v. Ayers, 37 Wyo. 136; Davis Co. v. Richards, 115 U.S. 524. There was no consideration for the guaranty even though the holder did in fact forbear. Doorly v. Butte (Mont.) 230 P. 779. Contracts of guaranty are like other contracts requiring the minds of the guarantor and guarantee to meet upon the proposition in the same sense. Deering v. Mortell, 110 N.W. 86; Royal v. Newlin (Utah.) 239 P. 49; Continental Supply Company v. Smith (Okl.) 241 P. 770; Ochler v. Cowley (Okla.) 231 P. 539. Acceptance is not shown by the mere performance of acts in reliance upon the offer. 20 Cyc. 1404; Miama Bank v. Goldberg (Wis.) 113 N.W. 391; German Sav. Bank v. Company (Ia.) 83 N.W. 960. There is nothing in the record showing that plaintiff postponed notice of cancellation in reliance upon said guaranty; therefore plaintiff cannot prevail. Acme Mfg. Co. v. Reed (Pa.) 47 A. 205. The law is not in sympathy with a compensated surety. Scott v. Norton Hdw. Co. 54 F.2d 1047. Contracts of individual guarantors should be strictly construed, and all doubts resolved in their favor. T. & T. Co. v. U. S. F. & G. Co. (Ore.) 1 P.2d 1100.
The cause was submitted for defendant Charles Hirsig upon the brief of Matson & Swainson and Carleton A. Lathrop of Cheyenne, Wyoming.
Hirsig did not sign the bond and his statement of intention in placing his signature to a property statement on the back thereof was admissible. 22 C. J. 1630; Humphrey v. Company (Okla.) 75 P. 528; U. S. F. & G. Co. v. Siegmann, (Minn.) 91 N.W. 473; Jones v. Coulter (Cal.) 243 P. 487; Barton Co. v. Taylor (Ark.) 94 S.W. 714; City of Butte v. Cook (Mont.) 74 P. 69; Hendry v. Cartwright (N. M.) 89 P. 312; Ware v. Allen, 128 U.S. 590. The manner in which an obligor places his signature to a bond is immaterial, if it appears that he made it for the purpose of binding himself. State v. Wallis, (Ark.) 20 S.W. 811. It was a question for the jury whether Hirsig, not having signed at the foot of the bond, meant to be bound by it as it stood, or whether he left it unsigned because he refused to sign the bond. Willtrout v. Sprague, 40 Wyo. 215; Christensen v. McCann, 41 Wyo. 101; Mulhern v. Mahs, 41 Wyo. 214; Hitshew v. Rosson, 41 Wyo. 509; Lincoln Land Co. v. Irrigation District, 42 Wyo. 229; Yellowstone Sheep Company v. Stock Company, 43 Wyo. 15; North Laramie Land Co. v. Hoffman, 30 Wyo. 238. Appellant's first cause of action was unsupported by evidence. A party cannot object for the first time on appeal that a certain allegation of the petition was admitted if the trial proceeded on the theory that it was traversed. Davis v. Minnesota Baptist Convention (Wyo.) 16 P.2d 48; Briggs v. Kansas City Bank (Mo.) 40 S.W.2d 682; Degge v. Co. (Colo.) 140 P. 478; Roberts v. Company (Wash.) 53 P. 664; Weidenmueller v. Co. (Cal.) 61 P. 374; Wyoming Stockmen's Loan Company v. Johnston, 33 Wyo. 457; Hoffman v. Ass'n (Wash.) 102 P. 1045; Sweeney v. Railway Co. (Ariz.) 29 P. 15. This defendant concurs in and adopts the statements and arguments filed by other defendants where applicable to his situation.
The cause was submitted for defendant Charles R. Mason on the brief of Chiles P. Plummer of Cheyenne, Wyoming.
Defendant Mason and wife were partners in the insurance business under the name of "Mason Fire Insurance Agency," in Wheatland, Wyoming. He was a stockholder and director of the bank. He appears in a dual capacity, as agent for the plaintiff in selling a guaranty bond to the bank, but he had no technical knowledge of the bonding business. The correspondence indicates that plaintiff desired to retain the premium, at the same time hoping to get something signed that would be in the nature of an indemnifying bond; but there is nothing in the record showing instructions to Mason by plaintiff as to what they required in the way of an indemnifying bond. The bond was signed by some officers of the bank on the front page, as officers with no personal obligation, as they believed, while others signed a financial statement on the back thereof, intending it to be only a financial statement. The record considered as a whole shows that the bond was never completed and never accepted. The court found generally for the defendants and against the plaintiff. The fourth ground of defendant's joint and several motions to dismiss should have been sustained. In order to avoid an unnecessary extension of this brief, defendant Mason concurs in and adopts the statements, briefs and arguments filed by other defendants in so far as applicable to his situation.
M. A. Kline for appellant in reply.
The record will show that Mr. Hirsig testified that he would not sign a bond but would sign a statement. He said nothing about a property...
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