Yerxa, Andrews & Thurston v. Viviano

• Decision Date: 01 December 1931
• Docket Number: No. 30038.,30038.
• Citation: 44 S.W.2d 98
• Court: Missouri Supreme Court
• Parties: YERXA, ANDREWS & THURSTON, Inc., v. VIVIANO.

44 S.W.2d 98

YERXA, ANDREWS & THURSTON, Inc., v. VIVIANO.

No. 30038.

Supreme Court of Missouri, Division No. 2.

December 1, 1931.

Appeal from St. Louis Circuit Court; Erwig G. Ossing, Judge.

Action by Yerxa, Andrews & Thurston, Incorporated, against Vito Viviano and others. Judgment for the plaintiff, and the defendant named appeals.

Affirmed.

Lubke & Lubke, of St. Louis, for appellant.

D'Arcy & Neun, of St. Louis (H. L. Hoidale, of Minneapolis, Minn., of counsel), for respondent.

WHITE, P. J.

Action on appeal bond. The plaintiff corporation obtained judgment against the Randazzo Macaroni Manufacturing Company for $7,034.43, December 28, 1922. The defendant corporation appealed from that judgment to the St. Louis Court of Appeals, giving bond in the sum of $14,500. A. L. Randazzo and Vito Viviano, defendant here, signed the bond as sureties. The case was transferred to the Supreme Court and November 15, 1926, was in all respects affirmed. 315 Mo. 927, 288 S. W. 20. The judgment was never paid, and this suit was brought in the circuit court of the city of St. Louis against the principal and sureties on the appeal bond, and judgment rendered November 13, 1928, for $7,034.43 and interest and costs from the date of the judgment, total aggregating $9,705.49. From that judgment defendant Viviano prosecutes this appeal.

I. It is claimed first that Viviano signed the bond in ignorance of its contents, without ability to read or understand it; that it was misrepresented to him. Upon being shown the bond, Viviano testified that it was his name signed to it, but he never read it; he was an Italian and at that time, January 1923, unable to read English or understand the English language spoken; that Randazzo, his cosurety, said nothing to him at the time the paper was signed, but came to his office that day before the paper was signed and told him he wanted him to go over to court for the valuation of Randazzo's factory. He then went over to court with Mr. Randazzo. That was all that Randazzo said. He said nothing about any bond. The witness did not understand when he wrote his name at the bottom of the paper that he was agreeing to pay $14,500.

The plaintiff had first introduced the transcript of examination of Viviano at the time he signed the bond. Viviano was asked about the capitalization of his corporation, and said that the Viviano estate owned a factory building worth $200,000. That the capital stock was $120,000; that he owned one-fourth of it. He was asked if it stood in his name. He answered that it did and was not pledged in any way as collateral security. Other questions were asked and answered about the particulars of his property. Nothing else is shown about any statement made by or to him at the time he signed the bond.

On cross-examination he repeated that Randazzo wanted him to go to court to put a valuation on his (Randazzo's) factory, and at the court he was not asked anything about Randazzo's factory, but was asked only about what property he had. He said that he was surprised when he was asked about the valuation of his property, and he asked the judge, "Why do you ask me about my estate?" He didn't remember what the judge said.

Where a person cannot read the language in which a contract he is asked to sign is written, it is his duty to procure some person to read or explain it to him before he signs it, just as it is his duty to read it if he is able to do so, and his failure to obtain a reading or explanation of it is such gross negligence as will estop him to avoid it on the ground that he was ignorant of its contents. 13 C. J. 372; State ex rel. Union Pacific R. Co. v. Bland, 324 Mo. 601, loc. cit. 607, 23 S.W.(2d) 1029; International Text-Book Co. v. Anderson, 179 Mo. App. 631, loc. cit. 637, 162 S. W. 641; Hall v. K. C. S. Ry. Co. (Mo. App.) 209 S. W. 582, loc. cit. 584.

Here Viviano, apparently a man of intelligence and substance, was asked by his cosurety, who was in fact the principal, to go to court with him for the purpose of valuing the cosurety's property When he got to court nothing whatever was said about valuing Randazzo's property. He was asked only about his own property and its value and he was asked to sign a paper. He was surprised, but signed without making further inquiry as to the contents of the paper or its purpose. It is not claimed that there was any misrepresentation at that time, nor at any other time, by any one except Randazzo's statement that he wanted him to go to court to testify about Randazzo's property. It is not claimed that the obligee in the bond, plaintiff here, made any representations of any kind; they were all in the court at the time. There was nothing in the world to apprise the plaintiff nor the judge that Viviano did not understand exactly what he was signing. Viviano, if his story is true, was thus grossly negligent in failing to inform himself. Besides, his recollection of what occurred is somewhat vague, influenced perhaps by his interest in the matter, because the evidence he gave at this trial was several years after he signed the bond.

II. The appellant makes the point that at the time of the affirmance of the judgment appealed from the appealing corporation, the Randazzo Macaroni Manufacturing Company, had forfeited its charter, that all its rights and franchises as a corporation were canceled by order of the Secretary of State, and therefore a judgment of affirmance against it was a nullity and no action would lie against the corporation on its appeal bond.

The Secretary of State, while the appeal was pending, did make such an order, finding that the corporation had failed to comply with the provisions of section 8 of the Act of 1919, which provided for a forfeiture of the rights and privileges of a corporation on failure to file certain reports required by other sections of the act.

The appellant points to a rule that a judgment against a dead person is a nullity. This court, in State ex rel. Potter v. Riley, 219 Mo. 667, 118 S. W. 647, in an exhaustive opinion by Judge...