Wynnegar v. Southwestern Co.
| Decision Date | 27 October 1919 |
| Docket Number | 20773 |
| Citation | 83 So. 3,120 Miss. 675 |
| Court | Mississippi Supreme Court |
| Parties | WYNNEGAR v. SOUTHWESTERN CO |
1 TRIAL. Peremptory instruction. Conflicting evidence.
When the evidence on a material point in the trial is conflicting a peremptory instruction should not be given.
2. PRINCIPAL AND SURETY. Alteration of bond, material.
In a suit on a surety bond for the payment of goods and other items furnished the surety's son, when the evidence showed that a clause in the bond relating to payment by the son had been altered by striking out the words, "within thirty-five days after each shipment," and in lieu thereof inserting "at Nashville, Tenn., in fall of 1911," such an alteration was material, since it affected the rights of both parties to the contract.
APPEAL from the circuit court of Prentiss county, HON. CLAUDE CLAYTON, Judge.
Suit by the Southwestern Company against T. J. Wynnegar. Peremptory instructions, verdict and judgment for plaintiff and defendant appeals. See, also, 111 Miss. 412, 71 So. 737, 81 So. 177-410.
The facts are fully stated in the opinion of the court.
Judgment reversed, and cause remanded.
Jas A Cunningham, for appellant.
The appellant in its special plea number three, sets up as a defense that this document was tampered with after they signed it so as to change the date of maturity of the principal's obligation from "thirty-five days" so as to read "in the fall of 1911," which plea it is alleged renders the said obligation void. (a) Because the instrument sued upon was not the instrument signed by the appellant; (b) And the modifications of the instrument was an extension of time of the principle so as to absolutely release the sureties, but this question of modification was a controverted question of fact for the jury to pass upon. (c) And the evidence shows that the time at which these payments were to become due was unequivocally modified by an extensive contract which was controlling between this principal and the appellees as admitted by the witness Coffey for the appellee, and which extended the time of payment and which rendered this contract of suretyship void.
The action of the trial court in brushing aside all of the evidence tending to establish these various defenses in this cause of action is very extraordinary and is a most arbitrary deprivation of the right which litigants are supposed to have to submit all controverted questions of fact to a jury of their peers for determination. And in order to acquire this right the appellant appeals to this court.
Under the first special plea relied upon and fully described in the above statement of this cause, Mr. Wynnegar testified that he had already decided to sign this letter of credit for his son when he was called up by Mr. Prickett as acting manager of the Southwestern Company from Nashville, Tennessee, over long distance telephone, and he made known to Mr. Prickett that he had helped his son before repeatedly, and that his son had been in the employ of that company long enough, if doing any good, to have a credit of his own, and that if he had not built up a good credit by this time, that he was disinclined to help him. This answer was hypothecated upon the very question of his son's well doing and good credit with the company and just at this place the Southwestern Company in all good conscience were called upon to speak with this knowledge locked in their breasts and a father at the other end of the line reluctant to become surety for his son, but this man did not divulge, but concealed the condition of this boy's credit and the character of his well doing and went on to fully impress the father that the son was doing well and had a good credit.
He answered that among other things, that it was not a question of the boy's credit at all, that they were only asking this as a matter of custom, impressing the father that the suretyship was not sought, but in the view of protecting themselves against the principal's default, but to carry out a custom, Wynnegar's evidence and if this evidence is true, there was certainly a fraudulent concealment and a concealment of matters so directing inquiry about it that it was his duty to speek. To support view we cite the following to wit: 20 Cyc., p. 75 78 (E).
In our opinion every element of fraud necessary to complete defense was committed by the manager of this company at the end of that telephone line when he landed this old farmer on that occasion and at least this is certainly a question to submit to a jury for their determination.
The defense relied upon under special plea number two and fully described in the statement of this cause above was passed on by this court on a former appeal, but mind you, it was passed upon with the view of determining whether or not the court below was correct in rendering a peremptory finding on the facts for the defendant. I do not understand the court to mean that the question of whether or not Wynnegar made inquiry while standing at this telephone was precluded from being submitted to a jury.
The opinion that where inquiry is made that disclosure must follow and a careful examination of Wynnegar's evidence will convince the mind of this court that just such inquiry was made by this father though the reason he offered for not signing the letter of credit as would require this book concern's acting through its agent Prickett in all good conscience to disclose this former default, dissipation and bad conduct of his son; especially is this true when the company at that time held an unsatisfied obligation from this same appellant as surety and he remained perfectly silent as to all this, but the whole effect of what he said was to lead the father to believe that the son was doing well and maintained a good credit.
It appears to us that as far as this case can go it is to preclude the peremptory instruction on this point and that the cause might be submitted to a jury on this proposition under proper instructions, but anyway, there are many questions in this case that ought to be submitted to a jury and that were not touched or affected by the former appeal. We most respectfully cite for the careful consideration of the court, 32 Cyc., p. 62.
The defense under this plea sets up that the contract called a letter of credit was modified after it was signed by the sureties so as to extend the time from "thirty-five days" to "in the fall of 1911," which if true would render this obligation void. This was testified both by Wynnegar and Taylor and the cause should have been submitted to a jury on this proposition, 32 Cyc., p. 177. This extention of time, if believed by the jury to be true, would release the sureties on the letter of credit, but just in this connection this appellee company had entered into a contract with this principal, Paul Wynnegar which varied this letter of credit and which controlled and superceded the letter of credit and which has varied the letter of credit and extended the time of payment and thereby released the sureties who did not know of this contract and were not consulted about it, and which was to be kept as a profoundly secret contract according...
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