W. Sur. Co. v. Boettcher

• Court: South Dakota Supreme Court
• Writing for the Court: McCOY
• Citation: W. Sur. Co. v. Boettcher, 39 S.D. 541, 165 N.W. 381 (S.D. 1917)
• Decision Date: 13 December 1917
• Docket Number: No. 4217.,4217.
• Parties: WESTERN SURETY CO. v. BOETTCHER et al.

39 S.D. 541

165 N.W. 381

WESTERN SURETY CO.

v.BOETTCHER et al.

No. 4217.

Supreme Court of South Dakota.

Dec. 13, 1917.

Appeal from Circuit Court, Minnehaha County; Joseph W. Jones, Judge.

Action by the Western Surety Company against Henry M. Boettcher and another, impleaded with Joe Lenz. Verdict for Lenz. From an order granting a new trial, he appeals. Affirmed.E. B. Harkin, of Aberdeen, and Bates & Bates, of Sioux Falls, for appellant.

Kirby, Kirby & Kirby, of Sioux Falls, for respondent.

McCOY, J.

The defendant Boettcher, from July 1, 1910, to June 30, 1911, was engaged in the business of selling intoxicating liquors at retail, and as such dealer entered into and gave the retail liquor dealer's bond required by statute, with the respondent in this case as his surety. Prior to the execution of said statutory liquor dealer's bond the defendant Boettcher entered into another bond with the defendant Dorrell and the appellant Lenz as sureties, wherein and whereby they jointly and severally agreed to indemnify the plaintiff, as surety on said retail liquor dealer's bond, from and against any liability, loss, cost, charges, suits, damages, and expenses of whatever kind which said plaintiff might sustain or incur for or by reason or in consequence of having become security on said retail liquor dealer's bond. Thereafter the respondent as the result of a judgment was compelled to and did pay $1,850 damages by reason of the failure of said Boettcher to comply with the terms of said retail liquor dealer's bond.

This action was instituted by respondent to recover the said $1,850 from Boettcher and his said sureties on said indemnity bond. The appellant Lenz interposed the defense that he had been misled into executing the said indemnity bond by the false and fraudulent representations of one Mo, the agent of respondent, and that by reason of such false representations the appellant did not know that he executed an indemnity bond at the time he signed the same, but supposed that in truth and in fact he was signing only a personal recommendation for said Boettcher to enter into the saloon business. On the trial, verdict was rendered in favor of appellant Lenz. Motion for new trial, made by respondent on the ground, among others, that there was no evidence submitted on the trial tending to show that said Mo was the agent of respondent in procuring the appellant Lenz to sign said indemnity bond for Boettcher, having been granted, appeal was taken...