First State Bank v. C. E. Stevens Land Co. , 123 Minn. 218 ( 1913 )

Hallam, J.

This is an action on a bond given on an appeal to this court. In 1904 one Hiebert brought action against the defendant C. E. Stevens Land Co. The court decided that Hiebert was entitled to a money judgment. The Land Co. moved for a new trial. This motion was denied. A notice of appeal from this order was served. On the .same day this bond was given, with the defendant Title Guaranty & Surety Co. as surety. The bond contained the conditions required by statute in a supersedeas bond given on appeal from an order, and in addition thereto it contained a condition not required by statute, •to satisfy “all judgments” which may be rendered against the appellant in said action. The order appealed from was affirmed by •stipulation of the parties, and judgment for plaintiff was entered in the district court for $5,898.55. The Land Co. paid a part only •of this judgment. This plaintiff is the assignee of Hiebert. This .action is brought to recover the balance due on this judgment, and is predicated entirely on the condition of the bond to pay “all judgments”; that is, on the provision in the bond which the statute did not require. It is not claimed that the bond has any force as a .statutory supersedeas bond, but it is claimed that it is effective as a common-law bond.

1. This case was before this court on a former appeal (119 Minn. 209, 137 N. W. 1101, 43 L.R.A.(N.S.) 1040). It was there held ¡that it is competent for parties on taking or contemplating an appeal to enter into a common-law bond, and that a bond given as a common-law bond, is given for a valid consideration, is binding and •enforcible according to its terms. See also Johnson v. Dun, 75 Minn. 533, 78 N. W. 98. On the second trial the court gave judgment for plaintiff and against both defendants for the balance remaining due, .and défendant bond company appeals.

It is contended that under the facts found by the trial court this bond must be regarded as a statutory bond, and not as a common-law bond. We cannot so. hold. The trial court found in substance* tbat tbe bond was executed and delivered in accordance with am agreement made prior to tbe giving of tbe bond; tbat Hiebert, tbe plaintiff in tbat action, agreed to forbear entering judgment during; tbe pendency of tbe appeal, and tbat, in consideration of tbe bondi being executed and delivered, be did refrain from entering judgment until tbe appeal was determined. Tbis is not a finding of a statutory bond. There is no finding tbat tbe court was asked to fix tbe amount, of tbe bond, nor tbat appellant caused it to be approved by tbe court or filed with the clerk, as tbe statute requires in case of a statutorysupersedeas bond. We think tbe findings support tbe contention tbat, there was no intention of complying with tbe statute or of giving a statutory bond, but tbat the bond was given as a common-law bond.. It was given upon a valid consideration and is enforeible as a common-law bond.

2. Appellant contends tbat tbe evidence is not sufficient to sustain, a finding tbat tbis agreement was in fact made. We cannot so bold.. Tbe agreement, if one was made, was entered into by D. A. Stuart,, as attorney for tbe plaintiff in tbat action, and Wilson Borst, as attorney for tbe defendant Land Co. Tbe testimony of Mr. Borst is, to tbe effect tbat such agreement was made. He is now tbe attorney for tbis plaintiff and was an interested witness, but be is corroborated in some particulars by two other witnesses. Moreover, it is inherently-probable tbat tbe incorporation of this unusually onerous provision in tbe bond was tbe result of negotiations of some sort, and this testimony furnishes a reasonable explanation of tbe conduct of the-parties in incorporating tbis provision in tbe bond. Tbe only testimony contradicting tbe above is tbat of Mr. Stuart. He denies in íoío tbe testimony of all three witnesses for tbe plaintiff. But bis. testimony is impeached by tbe fact tbat be himself was originally attorney for tbe plaintiff in tbis action and tbat, with full knowledge of all tbe facts, be drafted tbe amended complaint upon which; tbe action was tried, and tbat tbe allegations of tbis amended complaint- are in direct contradiction of bis testimony and in accordancewitb tbe testimony of plaintiff’s witnesses. When Mr. Stuart interposed this pleading, he was bound by duty to the court and to his ■client to plead the truth and not falsehood. The court was amply .sustained in finding that he did so.

3. It is urged on this appeal that the agents who executed the bond had no authority to give a bond of this sort; that their authority was limited to the execution of statutory bonds. The defendant bond company is in no position to raise this question now. The bond wás executed more than four years before this suit was brought. The amended complaint sets out the bond in hoec verba, alleging, however, that there was a mistake in the date. The answer admits, “that the defendants — in the form and manner set out in said complaint, executed the instrument” and, “denies that there was any mistake or inadvertence in the drafting of said instrument or in the execution thereof.” This admission that the defendant executed the bond “in the form and manner set out in said complaint” is wholly inconsistent with any claim of want of authority to execute it either in whole or in part. The admission carries with it an admission of ■all that is essential to a valid execution of the bond, and the whole •of it, and it admits the full authority of the agents by whom it was ■executed.

4. It is claimed that the amount for which the trial court gave judgment is in excess of the amount which the evidence showed to be due. Substantial payments were made upon the judgment in the original action. A number of these payments were remitted by mail in the year 1905 by one Way, representing the Land Co., to Wilson Borst, and were by him paid over to Hiebert, the plaintiff in the original action. Appellant claims that Way made a payment to Borst of $500 in November, 1905, that was never credited, and which the trial court did not allow, and contends that the evidence required a finding that the disputed $500 was paid. We consider it immaterial whether Way paid this amount to Borst or not. It is admitted that this disputed item was never received by Hiebert. .Borst had been attorney of record for the Land Co. There is no evidence that Hiebert had authorized him to collect and receipt for money paid upon this judgment. It is plain from the correspondence in evidence that Way did not understand that Borst was so authorized, for he was persistently demanding of Borst that he send receipts showing that the money had been applied in accordance with instructions, or, as he put it in one letter, “receipts * * * showing that it has been paid to Hiebert or his proper representative.” The payments made by Way to Borst are matters between them. With these payments Hiebert and his assignee, the plaintiff in this action, have no concern. The evidence sustains the finding of the court as to the amount due to the plaintiff.

Judgment affirmed.

Philip E. Brown, J., took no part.