National Surety Co. v. Griffin

In brief, this is an action wherein defendant in error, Charlotte E. Griffin, sought to recover upon a surety bond given by Virginia Broden, Louis A. Wald, the George W. Stone Company, and the National Surety Company, under the provisions of Section 6373-3 (d), General Code, a section of the Blue Sky Law of Ohio. The bond of the dealer, the George W. Stone Company, was in the sum of $10,000. The bond of the two individuals, namely, Virginia Broden and Louis A. Wald, was in the sum of $2,500.

The National Surety Company was the surety on both of these bonds.

Defendant in error claimed she had suffered a loss in the sum of $3,000, with interest, by reason of having purchased from the dealer and the two agents above mentioned certain securities, and that her loss was caused by reason of the misrepresentations made in the sale thereof.

Defendant in error recovered judgment for the full amount claimed, with interest, totaling $3,425.83, against the George W. Stone Company, Virginia Broden, and Louis A. Wald, and against the National Surety Company for the same amount, as surety on the bond of the George W. Stone Company. The jury further found for defendant in error against the National Surety Company in the sum of $2,599, as surety on the bonds of Virginia Broden and Louis A. Wald, respectively.

A motion for a new trial having been overruled, judgment was entered on the verdict, and from such judgment error is prosecuted to this court.

The section of the statute above referred to, namely, Section 6373-3 (d), 112 Ohio Laws, 274, reads as follows:

"Every such original applicant shall execute and file a bond to the state of Ohio in such sum in no case to be less than ten thousand dollars and with such surety as the commissioner requires, and shall also execute and file a bond to the state of Ohio in such sum as the commissioner may require, but not to exceed twenty-five hundred dollars with such surety as the commissioner requires, for each original appointment of an agent named in such application or in any supplemental application made thereto. Such bonds shall be filed with the commissioner of securities and kept by him in his office. Such bonds shall be conditioned upon the faithful observance of all of the provisions of this act, and shall also indemnify any purchaser of securities from such dealer or agent who suffers a loss by reason of misrepresentations in the sale of such security by such dealer or agent, and shall cover original license and renewal thereof. Any purchaser claiming to have been damaged by misrepresentation in the sale of any security by such dealer or agent may maintain an action at law against the dealer or agent making such misrepresentations; or both the dealer and agent where the agent makes such misrepresentations; and may join as parties defendant the sureties on the bonds herein provided for."

The principal controversy in this case relates to the charge of the court in reference to the nature of the misrepresentations which must be made in order to create a liability under the bond.

In brief, the court charged the jury as follows:

"And I say to you as a matter of law that if you find that such a misrepresentation was made upon the part of the George W. Stone Company or its agents at that time to this plaintiff, and that those statements were false and untrue, whether they were made willfully or whether they were made carelessly or recklessly, if she relied upon them and parted with her property, and they were misrepresentations, then this plaintiff should recover from any and all defendants as principals who took part in any of those misrepresentations, whether those principals knew them to be true or not."

It is contended by counsel for plaintiff in error that the misrepresentations, in order to be actionable, must have been fraudulently made; that is, they must have been known to be false.

We have considered the section of the statute carefully, and have also examined the authorities cited by counsel in their respective briefs upon this phase of the case. Without discussing the authorities in detail, we are of opinion that the charge of the court in this respect contained a correct interpretation of the section of the statute involved.

We have examined the charge of the court in the other respects complained of, and, when the charge is read in its entirety, we find nothing therein which we consider prejudicial to plaintiff in error.

Our attention was also called during the oral argument to a claimed defect of parties in this case. We find that this same question was raised by a motion filed December 10, 1928. This motion was overruled by the local Court of Appeals, as appears from the docket of this court, on December 24, 1928, and we adopt its ruling upon that question.

Objection is also made to the form of the verdict which was returned by the jury.

The copy of the docket and journal entries, as filed, contains the following:

"Parties by their attorneys come and a jury is duly impanelled and sworn, who after due trial do find for plaintiff in the sum of $3,425.83 against the George W. Stone Company, Virginia Broden and Louis A. Wald, and the jury further finds for the plaintiff against the National Surety Company for $3,425.83 as surety on the bond of the George W. Stone Company, and the jury further finds for the plaintiff against the National Surety Company for the sum of $2,500 as surety on the bonds of Virginia Broden and Louis A. Wald respectively."

It is suggested by counsel for plaintiff in error that a double recovery might be had under the verdict so returned. The verdict as returned by the jury is in somewhat unusual form, but we do not see how the plaintiff in error can be prejudiced thereby.

There can be but one recovery, and counsel for defendant in error in open court so concedes.

The judgment entry of the lower court may, if so desired, be modified to show that the full amount of recovery upon the judgment shall be limited to $3,425.83, plus interest.

We have considered all of the errors urged by counsel for plaintiff in error, and, finding no error in the record which we consider prejudicial to plaintiff in error, the judgment of the lower court will be affirmed.

Judgment affirmed.

ALLREAD and HORNBECK, JJ., concur.

Judges of the Second Appellate District sitting in place of Judges VICKERY, LEVINE and SULLIVAN, of the Eighth Appellate District.