Western Assurance Company v. Walden

• Decision Date: 29 November 1911
• Parties: WESTERN ASSURANCE COMPANY v. JAMES T. WALDEN et al., Appellants
• Court: Missouri Supreme Court

141 S.W. 595

238 Mo. 49

WESTERN ASSURANCE COMPANY v. JAMES T. WALDEN et al., Appellants

Supreme Court of Missouri, First Division

November 29, 1911

Appeal from Jasper Circuit Court. -- Hon. Howard Gray, Judge.

Affirmed.

H. W Currey for appellants.

(1) "Judgment or decree of a sister State against nonresident rendered in a suit in which the defendant did not appear and upon whom there was no personal service of process cannot be used as evidence for any purpose outside of the State in which the suit was brought." 7 Ency. Ev., p 840. (2) "The full faith and credit clause of the Constitution of the United States does not apply to judgment in rem." Reno on Nonresidents, secs. 188, 197, 200, 201; McCormick v. Elliott, 43 F. 469-473; Freeman v Alderson, 119 U.S. 185; Elliott v. McCormick, 10 N.E. 709; Needham v. Thayer, 18 N.E. 429; Cole v. Cunningham, 133 U.S. 107; St. Clair v. Cox, 106 U.S. 350; Greenleaf on Evidence (18 Ed.), sec. 540; Smith v. McCutcheon, 38 Mo. 415; Abbott v. Shepherd, 44 Mo. 273; Crimm v. Crimm, 162 Mo. 544; Wilson v. Railroad, 108 Mo. 599. (3) The Arkansas Mining Company, plaintiff in this Illinois proceeding, Walden & Tarr, defendant in that proceeding, and the plaintiff in this case were all nonresidents of the State of Illinois; and there was no service on these defendants or any one of them. In such case the Illinois proceeding is null and void and should not have been received in evidence. The proceeding did not garnish the debt, which prior to that date had been paid to the creditor of the plaintiff company. Reimur v. Mfg. Co., 70 F. 573; Bullard & Hoagland v. Chaffie, 51 L. R. A. (Neb.) 715; Louisville, etc. Co. v. Nash, 41 L. R. A. (Ala.) 331. (4) The plaintiff being a Toronto, Canada, corporation, the debt which it, by virtue of its license to do business in this State, owed to citizens of this State could not be by it owing in Illinois, where, so far as the record shows, it was not licensed to do business. Swedish, Etc. Co. v. Bleecker, 72 Minn. 383; Torrille v. Railroad, 148 Mo. 621. (5) The court refused to permit the defendants, Walden & Tarr, the principals in the bond, to show they owed the plaintiff nothing. It was the garnishee's duty to make this defense for its own protection. This error ought to reverse the case. Connor v. Reaver, 103 N.Y. 527; Railroad v. News Co., 151 Mo. 390. (6) The sureties are favorites of the law. The condition in the bond, to "defend, keep harmless," etc., does not bind the sureties to either defend or keep harmless from proceedings in courts outside the State of Missouri, nor any suit not intended to enforce a then existing right to said insurance fund. (7) The plaintiff had paid its debt to the defendants, Walden & Tarr, before the beginning of this attachment in that State. This was a perfect defense, which it was the plaintiff's duty to plead and prove. Mercantile Co. v. Bettles, 58 N. A. 384; Smith v. McCutchen, 38 Mo. 416; Drake on Attachments, sec. 695; Railroad v. Lake, 32 N.E. 590; Railroad v. Parish, 33 N.E. 122; Railroad v. Creamer, 33 N.E. 238; Hendrix v. Hendrix, 103 Mo.App. 40. (8) Notice of garnishment served on plaintiff in Illinois is not judicial process. Todd v. Railroad, 33 Mo.App. 110; Wile v. Cohn, 63 F. 759. And copy of the notice and return appearing in the Illinois record does not prove that any funds were attached in plaintiff's hands. (9) The plaintiff's petition states no cause of action on the bond sued on against the defendants, for the reason that it appears from the face of the petition that there was no consideration for the giving of the bond by the defendants to the plaintiff. A contract entered into with a party to induce him to do what he had previously agreed to do, or to pay money which was admitted to be due, is without consideration. Lingfielder v. Wainwright Brewery Co., 103 Mo. 578; Wear Bros. v. Smeltzer, 92 Mo.App. 314; Wideman v. Brown, 33 Mich. 241; Railroad v. Morley, 45 Mo.App. 304; Swaggard v. Hancock, 25 Mo.App. 597. (10) The assumption of threatened danger or liability, which has no foundation in law or in fact, is not sufficient consideration for a promise upon which an action can be maintained. Cabot v. Haskins, 3 Pick. (Mass.) 83.

McIntire & Scott and Fyke & Snider for respondent.

OPINION

WOODSON, J.

The plaintiff, the Western Assurance Company, was duly incorporated under the laws of Toronto, Canada, and at all the times hereinafter mentioned was lawfully engaged in the business of fire insurance in the State of Missouri and elsewhere.

The defendant Webb City Lumber Company was duly incorporated under the laws of this State, and engaged in the lumber business.

The defendant Webb City Iron Works was duly incorporated under the laws of this State, and engaged in the manufacture and sale of iron and the products thereof.

The defendants Walden and Tarr were a copartnership engaged in the contracting business at Webb City, Missouri.

On the 17th day of January, 1900, the plaintiff issued to the defendants Walden & Tarr, its policy of insurance, securing certain buildings and machinery erected by them for the Arkansas Mining Company, near Webb City, Missouri, against loss by fire in the sum of $ 1000 for a period of one year. Shortly before March 22, 1900, the property so insured burned down; and on or about that date the loss was adjusted at $ 1000.

Shortly before the adjustment, the Arkansas Mining Company and one S. F. Danglade notified the plaintiff, the insurance company, that they had some kind of a claim or lien on the insurance money, and for it not to pay the same to Walden & Tarr, but the nature of said claim or lien was not stated. Thereupon, the insurance company declined to pay the money to Walden & Tarr unless they would indemnify it against all claims which have or may be hereafter made against it, in connection with said policy or the moneys payable thereunder, by said Arkansas Mining Company or Danglade, or by any other person, etc.

On said 22nd day of March, 1900, the bond sued on was signed and transmitted to the adjuster of the insurance company at St. Louis. At that time such a bond required a revenue stamp, and upon its receipt the adjuster noticed its absence and returned it to the attorneys of the obligors to be stamped, which was done on March 27, 1900, and remailed by them to said adjuster in St. Louis.

Said bond (formal parts omitted) was as follows:

"Know All Men by These Presents, That we James T. Walden and Thomas Tarr, both of Webb City in Jasper county in the State of Missouri, manufacturers, as principals, and J. A. Bowman, Webb City Lumber Co., by J. A. Bowman, Mgr., Webb City Iron Works by Geo. W. Wright, Mgr., and George W. Wright, of Webb City, in the county of Jasper, State of Missouri, as sureties, are jointly and severally held and firmly bound to the Western Assurance Company of Toronto, Canada, in the sum of fifteen hundred dollars to be paid to the said Western Assurance Company or to their successors or assigns, for which payment well and truly to be made we bind ourselves, us and each of us, our and each of our heirs, executors and administrators, firmly by these presents.

"Signed with our seals and dated this 22nd day of March, 1900.

"Whereas the Western Assurance Company of Toronto, through its agency at the said Webb City, did issue to the said Walden & Tarr, their policy of insurance number 1,659,483, on the 17th day of January, 1900, for the sum of one thousand dollars covering the property in the said policy mentioned against loss by fire.

"And whereas, a loss has occurred under the said policy, which loss has been adjusted between the assured and the company at the sum of one thousand dollars, and the said The Western Assurance Company is about to pay to the said Walden & Tarr the said sum in full satisfaction of the claim under the said policy.

"And whereas, certain persons and corporations claim to be the creditors of the said Walden & Tarr and whereas the Arkansas Mining Company and F. H. Danglade jointly and singly have served notice on the said Western Assurance Company not to pay the amount of the said loss to the said Walden & Tarr and have served notice that the said Arkansas Mining Company and F. H. Danglade jointly or severally claim to have some right or lien in or on the said insurance money payable to the said Walden & Tarr,

"And whereas, the said Western Assurance Company has this day paid to the said Walden & Tarr the said sum of one thousand dollars in full satisfaction and discharge of all claims under or by virtue of the said policy.

"Now, Therefore the condition of this obligation is such that if the above bounded obligors or any of them or their heirs, executors or administrators or any of them do and shall from time to time and at all times hereafter save, defend, keep harmless and indemnify the said The Western Assurance Company, their successors or assigns from and against all or any claim or claims which has, have or may be hereafter made against the said Western Assurance Company under or in connection with the said policy or any of the moneys payable thereunder by the said Arkansas Mining Company or either of them or any other person or persons whomsoever and from any claim which has or may be made in favor of any person or corporation under or by reason of the Bankrupt Law in connection with the payment of the said sum to the said Walden & Tarr and from all costs, charges, damages and expenses that shall or may happen or arise from any such claim or claims made or to be made in connection with the said policy and the money payable and paid thereunder, then this obligation shall be void, but otherwise shall be and remain in full force, virtue and effect."

Then follow the signatures of the principals and...