Wood v. Stewart

• Decision Date: 10 December 1906
• Citation: 98 S.W. 711,81 Ark. 41
• Parties: WOOD v. STEWART
• Court: Arkansas Supreme Court

98 S.W. 711

81 Ark. 41

WOOD v. STEWART

Supreme Court of Arkansas

December 10, 1906

Appeal from Crawford Chancery Court; J. Virgil Bourland, Chancellor reversed.

Decree reversed and cause remanded.

Sam R Chew, for appellant.

1. The question whether appellee signed as a witness or as a guarantor was one of fact upon which appellant was entitled to have a jury to pass; and appellant should have been placed in position to have this question properly submitted, in a court of law. 35 Ark. 125.

2. If the allegations of the complaint are true, it does not state facts sufficient to authorize a court of chancery to interfere with the collection of a judgment at law. 50 Ark 458; 57 Ark. 599. The burden was upon the appellee to aver and prove a meritorious defense. Supra; 61 Ark. 339; 48 Ark 535; 40 Ark. 338.

3. The alleged agreement between appellee and the attorney was a fraud upon the rights of Bell, and upon the court. He is in no position to seek equitable relief. 6 Ark. 79; 43 Ark. 107; Bisph. Princ. Equity (4 Ed.), § 42; 1 High on Inj. § 205.

4. If it be conceded that Matlock was not authorized to represent appellee in the law court, still by his own conduct in that court appellee ratified his action and is bound by it. 50 Ark. 458.

Winchester & Martin, for appellee.

1. Viewed in the light of the facts as disclosed by the record, there is no fraud in the agreement. Appellee was lulled into a belief of security by the promise of appellant's attorney, and was kept under that belief until too late to apply for relief to the court trying the case. His only remedy was an appeal to a court of equity. 1 Black on Judgments, §§ 369 et seq.; 20 Conn. 543; 28 Id. 552; 12 N.Y. 156; 15 Hun, 170; 9 N.J.Eq. 246; 22 Gratt. 136; 3 Dana, 536; 30 Md. 437; 28 Conn. 58; 44 Ia. 179; 98 U.S. 61; 40 Ark. 338; 50 Ark. 458; 48 Ark. 535.

2. The findings of the chancellor on the facts will not be reversed unless clearly against the preponderance of the evidence. 44 Ark. 216; 68 Ark. 134; Id. 314; 73 Ark. 489.

OPINION

MCCULLOCH, J.

Appellant, John F. Wood, purchased a jack from one H. N. Bell for the price of $ 500, which was paid. At the time of the sale a written instrument in the following form was executed to appellant, the signature thereto of appellee, S.W. Stewart, appearing as shown below, viz.:

"Van Buren, Arkansas, 12-8-02.

"I hereby guaranty the jack, 'Cas Miles,' now at Van Buren, Arkansas, to be good server of mares and a good foal-getter. I further guaranty that he will sire as good crop of mules as any jack now in Arkansas. If he fails to do so, or fails on any of the above guaranty, I agree to refund the purchase money paid for said jack, and take him back and pay purchaser, John F. Wood, a reasonable compensation for care and keep of said jack, said amount to be $ 100. It is understood that said jack is to be properly handled and kept. I guaranty said jack at this time sound and healthy. I guaranty said jack to be free from climate fever. Jack to be delivered at Dyer, Ark., in good condition.

"HARRY N. BELL.

"Reference: Taylor National Bank of Taylor, Texas; State Bank of Texarkana, Ark.

"In case said jack fails to come up to written guaranty I agree to pay said J. F. Wood $ 100 as a forfeit over and above care and keeping.

Witness:

"HARRY N. BELL.

"S. W. STEWART,

"W. N. BOATRIGHT,

"O. N. GRAY."

Appellant and appellee both resided in Crawford County, Arkansas, and Bell in Miller County.

Appellant instituted an action in the circuit court of Crawford County against Bell and Stewart, in which he alleged that they had executed to him a written agreement whereby they guarantied said jack and agreed to refund the purchase price and pay appellant a forfeit of $ 100 and the expense of keeping the jack in the event of a breach of the guaranty. He also alleged that the jack had not come up to the guaranty, and prayed judgment against them for $ 500, the price paid for the jack with interest, $ 100 for expenses of keeping it and $ 100 forfeit. Before the commencement of the action appellant and one of his attorneys had several times mentioned the transaction to Stewart, and claimed that he was liable on the instrument of writing in question, but the latter always asserted that he had only signed it as a witness to Bell's signature, and that he was not liable thereon for any sum.

A short while before commencement of the action appellant's attorney informed appellee, who still insisted that he had signed the writing in question only as witness, that appellant wanted to sue on the writing and join appellee and Bell both in the suit as defendants, so as to give the circuit court of Crawford County jurisdiction of the person of Bell upon service of summons in Miller County where he resided; and said attorney proposed to appellee that if he (appellee) would offer no defense to said action, and judgment should go against him, appellant would not enforce the judgment against him. Appellee accepted this offer, the action was commenced and summons was served on Bell in Miller County, and on appellee in Crawford County. Bell employed an attorney, who filed an answer for appellee denying any liability upon the writing in question, and alleging that he signed same only as a witness to Bell's signature. He also filed for Bell a plea questioning the jurisdiction of the court on the ground that he had been summoned in another county. On a trial of the same before the circuit judge, sitting as a jury, he found that Bell and Stewart were both liable on the written guaranty, and rendered judgment against both for said sum of $ 500, the price of the jack, with interest, and the further sum of $ 100 for the expense of keeping the jack. The judgment expressly provided that execution should not be issued against Stewart until the plaintiff's remedy against Bell should be exhausted. This judgment was not appealed from.

Appellant caused execution to be issued against Bell to the sheriff of Miller County, which was returned unsatisfied, and he then sought to enforce the judgment against Stewart by issuance of execution against him.

Appellee, Stewart, then instituted this suit in equity against appellant to restrain the latter from attempting to enforce said judgment. His complaint, after setting forth the transaction concerning the sale of the jack and the rendition of the judgment and issuance of execution, proceeds as follows:

"Plaintiff now alleges that he did not sign said written guaranty as guarantor, but as witness, and that he was not, at the time said judgment was rendered, and is not now, legally or morally bound by said written guaranty. That he has never seen said writing since he signed the same as witness, but is informed and believes, and charges upon information and belief, that said writing is now in the hands of the said defendant, John F. Wood, or of his attorney of record in said suit. That the said Harry N. Bell, at the time suit was brought upon said written guaranty as aforesaid, was a resident of Miller County, Arkansas, and this plaintiff then and now a resident of Crawford County, Arkansas. That before said suit was instituted the said attorney of record in said suit for the said John F. Wood came to this plaintiff and told him he was going to sue on said written guaranty; that he was going to sue said Bell and this plaintiff; that, if this plaintiff would not defend said suit, he should never be called upon to pay any judgment that might be rendered against him in the suit; that he wanted to try the suit in Crawford County, and if he would make this agreement with him he would give him a written guaranty signed by himself and his client, the said John F. Wood, that he should never be called to pay anything upon any judgment that might be rendered against him in the case; that this plaintiff told him that his word was good to him, and that he would not defend the suit upon that agreement.

"That afterwards he was sued jointly with the said Bell to the June, 1904, term of the Crawford Circuit Court; that he employed no attorney, and did not defend said suit; that he was summoned as a witness for the said Bell, and testified in the case; that judgment was rendered against him as hereinbefore set out; that he took no steps to have said judgment set aside; did not ask for a new trial; that no bill of exceptions was filed; that he did not know what character of judgment was rendered against him, nor the amount of it; that he was absolutely quiescent in the whole matter, resting implicitly upon the agreement made by him with and at the solicitation of the attorney of record of the said John F. Wood in said case."

The prayer of the complaint is that appellant be perpetually enjoined from attempting to enforce said judgment against appellee.

Appellant filed his answer, alleging that appellee signed the writing as guarantor and was equally bound with Bell; admitted that agreement had been made, as alleged in the complaint, between appellant's attorney and appellee to the effect that appellee should make no defense, and that the judgment should not be enforced against him, but alleged that appellee had violated the agreement by employing counsel, filing an answer and defending the action brought by appellant against him and Bell, and that the agreement was rescinded by mutual consent before the judgment was rendered. Appellant also alleged in his answer that the question of appellee's liability as guarantor was expressly put in issue and adjudicated in the action in the circuit court, and the judgment of that court in said action was pleaded in bar of appellee's right to have it again adjudicated.

The depositions of all the parties to the controversy were taken and read at the hearing of this...