Dinch v. Workman ( 1920 )

Opinion by

Porter, J.,

The plaintiff brought this action against James Mc-Crory and W. F. Workman, upon a bond in which the defendants were the obligors. Judgment was taken against McCrory for want of an affidavit of defense. Workman filed an affidavit of defense, averring that the debt was that of McCrory, against whom the plaintiff had a judgment upon which an execution had been issued and a levy made on personal property of the value of thirty-four hundred dollars, the amount of the debt; that while the lien of the levy upon said property was existing, the bond upon which this action was brought was given, for the same debt, this appellant becoming surety for McCrory; that at the time said bond was signed and delivered the plaintiff, by his authorized agent, entered into a contemporaneous oral agreement with the appellant that he would assign to the appellant the judgment, against McCrory, and the lien and levy on the said goods for the purpose of indemnifying the affiant as surety on the said bond; that the appellant signed and delivered said bond upon the faith of said agreement, and would not have done so in the absence thereof; that plaintiff failed to comply with said oral agreement and permitted the said McCrory to remove the said goods so levied upon and dispose of them to his own use and thereby the said lien of the execution and levy upon the said goods was lost; the said McCrory is insolvent, and if the appellant is compelled to pay the said bond he cannot realize anything as against Mc-Crory. The plaintiff filed a replication denying that he had made the oral agreement alleged in the affidavit of defense, and the trial of the issue, between the plaintiff and Workman, resulted in a verdict and judgment in favor of the plaintiff, from which Workman appeals.

The fact that a contemporaneous oral agreement, of some kind, was entered into by this appellant and the authorized agent of the plaintiff was not seriously questioned at the trial, although the parties were at variance as to the details thereof. It is not contended by the appellee that the evidence produced by appellant, in support of his allegation that there was a contemporaneous parol agreement was not such as to require the submission of the question to the jury. Much testimony was introduced, some of which, related to the-actions and purposes of McCrory and his wife during the period that their personal property was subject to the levy by the sheriff. There was, however, no evidence whatever referring to the terms of the contemporaneous oral agreement, which was the real matter in controversy between the appellee and the appellant, which would have warranted a finding that McCrory was a party to that agreement or that, under the terms thereof, he was entitled to assert any right. It may have been argued that because McCrory had induced the appellant to become surety upon the bond, the purpose was to relieve the former from all the consequences of the levy of the execution upon his personal property, but there was nothing in the evidence to warrant a finding that the appellant had entered into any engagement to stay the execution or not sell the property levied upon. The appellant, by his sixth point, requested the court to charge that: “It would make no difference what object the McCrorys had in view, in seeking to have the defendant become or give security for the money James McCrory owed to W. F. Dinch. Their object or purpose would not be binding on the defendant.” McCrory may have thought that he could secure greater indulgence from the appellant than from the appellee, but his hopes could have no bearing upon the rights of the other parties, under the oral agreement. The point ought to have been affirmed without qualification, and the first and second specifications of error are sustained.

The plaintiff, in his second point, requested the court to charge: “If you believe that the defendant executed the bond in suit, as a friendly accommodation to Mc-Crory or because the defendant, Workman, was interested in the hotel in question, he would be liable, even if the debt were not his debt.” The point was bad in form, as not limiting the jury to the consideration of the evidence. There was no doubt, under the evidence, that the debt was that of McCrory and that Workman’s only liability was that of surety upon the bond. There was no evidence which warranted a finding that Workman had any interest in the hotel business. The point ought to have been flatly refused, without qualification, and the fifth and sixth specifications of error are sustained.

The evidence introduced by the plaintiff, the appellee, relating to the agreement to assign the judgment, was to the effect that, during the negotiations, the parties had arrived at an agreement upon the terms of the execution and delivery of the bond and mortgage, and that the matter of the assignment of the Dinch judgment to Workman came up as an afterthought. The court in its charge, after reciting this evidence, said: “In other words, the plaintiff contends that that was simply a gratuity, or thing which the plaintiff voluntarily agreed to do upon his part, but without any consideration moving.” Continuing to discuss this evidence the court said: “Even if there was a promise on the part of Mr. Dinch......that the Dinch judgment would be assigned to Mr. Workman, yet if that promise was a mere gratuity, made after the agreement with respect to the bond and mortgage had been consummated between the parties, then it was not such a parol contemporaneous agreement as is contemplated by the law; and that would not defeat a recovery in this suit.” In instructing the jury, as to this particular feature of the case, the learned judge of the court below entirely lost sight of the principle that, under the statute of frauds, this appellant could not be called upon to pay the debt of McCrory until after he had signed the bond obligating him to pay that debt. This appellant had the right, under the law, to shift his position as often as he saw fit during the oral negotiations, so long as he did not induce the plaintiff to enter upon any course of action which might prejudice the latter. Even if he had verbally agreed to sign the bond upon conditions stated, yet he had the right to insist upon any new terms he thought necessary for his protection, down until the moment he put pen to paper. The evidence introduced by the plaintiff, if believed, clearly established that this appellant was a surety for the debts of McCrory, and fixed the time when the agreement with regard to the assignment of the judgment was made as prior to the execution of the bond. The eighth, ninth and tenth specifications of error are sustained. While some of the other assignments of error, which relate to the charge, might, standing alone, be subject to criticism, they do not involve reversible error when considered in connection with the context. All the other specifications of error are overruled. None of the assignments of error here presented raise a question as to the measure of damages, in case the jury should find the contemporaneous parol contract to be as averred by the appellant, and we express no opinion as to whether the effect would be to totally invalidate the bond, or only to entitle the appellant to credit for the amount which he could have collected upon the judgment which was to have been assigned.

The judgment is reversed and a jnew venire awarded.