Wm. J. Lemp Brewing Co. v. Secor

• Decision Date: 24 June 1908
• Citation: 96 P. 636,21 Okla. 537,1908 OK 137
• Parties: WM. S. LEMP BREWING CO. v. SECOR et al.
• Court: Oklahoma Supreme Court

96 P. 636

21 Okla. 537, 1908 OK 137

WM. S. LEMP BREWING CO. v. SECOR et al.

Supreme Court of Oklahoma

June 24, 1908

Where the principal and the agent of the obligee, in an obligation or bond, represent to certain persons, to induce them to sign the same as sureties, that certain other parties had agreed to sign the same, also as sureties, and, further, that none of said sureties signing the same were to be bound on said bond, nor was the same to be delivered to said obligee until said designated parties had signed the same, said obligation or bond is neither a completed contract, nor binding upon said sureties, until so executed; and, though said obligee notified, by letter, said sureties that he had received and approved same, designating the names of the obligors thereon said obligation or bond being to secure a pre-existing debt said sureties not having replied to said letter from said obligee, such circumstances, as a matter of law, would not necessarily constitute an assent.

[Ed Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Surety,§§ 45-54.]

Where the agent of the obligee, in a bond or obligation, agrees that such bond or obligation shall not become binding until certain designated persons have signed the same, and that said bond or obligation shall not be delivered to the party represented by said agent unless it was so signed, and thereafter, in violation of such agreement and representations, the same is delivered to the party represented by said agent, and such party, disregarding such representations and agreement, approves the same, and notifies said sureties thereon, thereby varying the original agreement, said sureties will not become liable on said bond or obligation until they assent thereto.

[Ed Note.-For cases in point, see Cent. Dig. vol. 40, Principal and Surety,§§ 45-54.]

An "assent" is evidenced by a proposition emanating from one side, and an acceptance of it on the other, such proposition and acceptance together constituting what is called a "meeting of the minds"; and, where the proof fails to show that there was a "meeting of the minds" in the making of a contract, such contract does not become effective.

[Ed Note.-For cases in point, see Cent. Dig. vol. 11, Contracts, §§ 71-93. For other definitions, see Words and Phrases, vol. 1, pp. 545-547; vol. 5, p. 4469.]

Error from District Court, Comanche County.

Action by the Wm. J. Lemp Brewing Company against C. A. Secor and others. Judgment for defendants, and plaintiff brings error. Affirmed.

On the 25th day of May, A. D. 1904, plaintiff in error, as plaintiff, commenced this action against the defendants in error, C. A. Secor, Hub Crawford, R. B. Stevens, J. E. Dyche, Elliot F. Hook, as trustee in bankruptcy for M. S. Simpson, bankrupt, J. W. Bozeman, J. A. Pratt, S. L. Cheek, H. D. Ledgerwood, C. E. Bear, Charles Yahn, W. M. Bruce, George S. Bailey, R. T. Pritchard, and J. P. Boetner, as defendants, in the district court of Comanche county, territory of Oklahoma, alleging that on the 4th day of November, 1903, said defendants made, executed, and delivered to said plaintiff their certain obligation and contract in writing, in words and figures as follows: "Know all men by these presents, that I, C. A. Secor, of Lawton, Comanche county, Oklahoma Territory, as principal, and Hub Crawford, R. B. Stevens, J. E. Dyche, M. S. Simpson, J. W. Bozeman, J. A. Pratt, S. L. Cheek, C. D. Ledgerwood, C. E. Bear, Chas. Yahn, S. M. Bruce, G. S. Bailey, of Snyder, R. R. Pritchard, of Snyder, J. P. Boetner, Lawton, as sureties, are held and firmly bound to Wm. J. Lemp Brewing Co., of St. Louis, Mo., in the sum of five thousand dollars ($5,000) lawful money of the United States, to be paid to the said Wm. J. Lemp Brewing Company, its successors or assigns, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly and severally by these presents. Sealed with our seals and dated this the 4th day of November, 1903. The conditions and consideration of the above obligation is such that, whereas, the said C. A. Secor is now justly indebted to the said Wm. J. Lemp Brewing Company in the sum of five thousand dollars ($5,000) after allowing all demands, counterclaims, and offsets, and whereas, the said C. A. Secor is desirous of an extension of the time of payment of the said indebtedness in installments as follows: Jan. 1, 1904, $200; Feb. 1, 1904, $200; March 1, 1904, $200; April 1, 1904, $300; May 1, 1904, $400; June 1, 1904, $400; July 1, 1904, $600; Aug. 1, 1904, $600; Sept. 1, 1904, $600; Oct. 1, 1904, $500; November 1, 1904, $500; Dec. 1, 1904, $500; to be payable at the office of said Wm. J. Lemp Brewing Co., St. Louis, Mo. Now, it is therefore for value received and in consideration of such an extension of time being granted by the said Wm. J. Lemp Brewing Company to the said C. A. Secor for the payment of the several sums of money at the different times heretofore mentioned, we and each of us do hereby undertake and obligate ourselves to make and secure the payment and performance of this obligation in accordance with the terms and conditions thereof as stated. Now, if the said C. A. Secor shall well and truly pay or cause to be paid to the said Wm. J. Lemp Brewing Company the said several sums of money when due as aforesaid, then this obligation is to be null and void, otherwise to remain in full force and effect, but if default is made in the payment of any of said installments at the maturity thereof the said Wm. J. Lemp Brewing Company shall have the right to declare all the other remaining installments due and payable at once by an endorsement in writing on this obligation of words to that effect; and demand of payment upon said C. A. Secor shall be sufficient notice to the sureties of the presentment or nonpayment of any or all of said installments. If payment is not made of said installments or any part of same when due and same is placed in the hands of an attorney for collection or suit is instituted thereon, we agree to pay ten per cent. additional as attorney's fees." Plaintiff further alleged that the defendants, and each of them, obligated and bound themselves, the said C. A. Secor as principal, and the other defendants as sureties, to pay the said plaintiff the sum of $5,000, on the several days and dates, the several amounts mentioned, as stated in said obligation, and, in addition thereto, 10 per cent. attorney's fees should default be made in the payment of any of said amounts when due, if same should be placed in the hands of an attorney for collection, or suit instituted thereon. Plaintiff further alleged that, by the terms of said obligation, upon default being made in the payment of any of said installments at maturity thereof, it had a right to declare all the other installments due and payable at once, by endorsing in writing, on the obligation, words to that effect. Plaintiff further alleged that, after the execution and delivery of said obligation, the said defendant C. A. Secor paid to the plaintiff the several amounts on the several dates as thereon indorsed, to wit, November 13, 1903, $104.47; December 30, 1903, $95.53; March 7, 1904, $200; March 9, 1904, $185.81; and April 25, 1904, $149.18. Further, that said defendants, though often requested since due, have not paid the balance due of $165.01 that became due on April 1, 1904, nor said installment of $400, due on May 1, 1904, and that, in keeping with and in accordance with the terms of said obligation, and by reason of the nonpayment of said sums, the plaintiff made the following indorsement in writing on said obligation, to wit: "By reason of the nonpayment, according to the terms of this contract and obligation, of the balance due on said installment of $300, falling due on May 1, 1904, the Wm. J. Lemp Brewing Co., of St. Louis, Mo., mentioned herein, do hereby declare each and all of the remaining said installments due and payable at once. This May 19, 1904, [Signed] Wm. J. Lemp Brewing Co. by A. Wahlstab, Agent"-when and whereby all of the said amounts, in said obligation and contract, not so paid became due and owing to the plaintiff, to wit, the sum of $4,265.01, together with interest thereon at the rate of 7 per cent. per annum, from May 18, 1904, until paid, and due notice thereof had been given to the defendants of the demand and nonpayment of said obligation, and demand had been made for the payment of the balance, the said sum of $4,265.01; and upon their failure to pay same, or any part thereof, said obligation and claim had been placed in the hands of an attorney for collection and for the institution of suit thereon, and by reason thereof the defendants were justly indebted to the plaintiff in the sum of $4,265.01, with interest thereon at the rate of 7 per cent. per annum, from May 19, 1904, and an additional 10 per cent. thereon as attorney's fees, for which plaintiff now asks judgment against the defendants.

The defendants each answered substantially as follows: Admitting the execution of said instrument, but stating that he signed the same with the distinct and special understanding and agreement with the plaintiff's agent, A. Wahlstab, and the principal, C. A. Secor, that there were to be upon said obligation the names of at least 25 good and solvent sureties, residents of Oklahoma Territory, who should be co-sureties with said surety before said obligation should be delivered or binding upon said defendants, and among said sureties, it was agreed with plaintiff's agent and the said principal, was to be one Harris and also one Ed Block the said Harris and said Block being men of considerable means, but that, in violation of said agreement, the plaintiff, through its duly authorized...