196 P. 984 | Mont. | 1921
delivered the opinion of the court.
The defendant James Kennedy Construction Company was not served with process, and the trial court denied appellant’s motion to require that company to be served with summons and made a party to the action as a necessary party to a complete determination of the controversy.
This is aiji appeal by the defendant surety company from a judgment rendered in favor of plaintiff upon a bond executed jointly by the James Kennedy Construction Company and appellant, which bond, after making recital that the plaintiff Agnes M. Comerford, as administratrix of the estate of Thomas Comerford, had recovered judgment in an action against the defendant James Kennedy Construction Company for the sum of $17,500 damages and that the plaintiff had procured .a transcript of the record in said action to be made and sent to the state of Idaho for the purpose of commencing suit on said judgment in that state, and “whereas, said court on the said 17th day of April, 1913, made an order requiring the defendant Kennedy Construction Company to prepare and file in this court, within ten days, a good and sufficient bond in the sum of Seventeen Thousand Eight Hundred ($17,800) Dollars in order to procure the recall of said papers and to stay execution:
“Now, therefore, we the undersigned, in consideration" of the premises and in order to procure the recall of said papers, sent to the state of Idaho, and continue in force said order to stay said execution, do hereby jointly and severally undertake in the sum of Seventeen Thousand Eight Hundred ($17,800) Dollars, lawful money of the United States, and promise to the effect that, if said judgment and execution shall be stayed until the motion for a new trial is heard and decided, that the defendant will, if said motion be overruled, take an appeal to the supreme court of the state of Mon*251 tana, from the judgment rendered in said action, and from' the order overruling defendant’s motion for a new trial, and if said motion for a new trial is overruled and the defendant fails to take an appeal to the supreme court of the state of Montana, within the time allowed by law for taking such appeal, we will pay to the said plaintiff in said action on demand, the amount of said judgment together with costs not exceeding in all the said sum of Seventeen Thousand Eight Hundred ($17,800) Dollars, lawful money of the United States.”
Plaintiff in her complaint in the case now before us asked a reformation of the bond as to its conditions, so as to include therein liability on the part of the surety 'to pay the judgment, it not having been reversed on appeal. (Comerford v. James Kennedy Constr. Co., 50 Mont. 196, 145 Pac. 952.) The trial court found, as a matter of law: “I. That the plaintiff is entitled to judgment upon said bond even without reformation in the sum of $17,800, together with interest thereon at the rate of eight per cent per annum from March 1, 1915. II. That the plaintiff herein is entitled to a decree reforming the bond referred to and sued upon in the plaintiff’s complaint to conform to the intent and agreement of the parties hereto by inserting in said bond, immediately after the word ‘appeal’ where the said word appears last in said bond, the following, ‘Or if such appeal is taken and the James Kennedy Construction Company is not successful in reversing said judgment or if said judgment shall be affirmed on such appeal.’ III. That plaintiff is entitled to a judgment upon said bond as reformed as against the defendant herein, United States Fidelity & Guaranty Company, in the sum of $17,800, together with interest thereon at the rate of eight per cent per annum from and after the first day of March, 1915. ’ ’ The judgment is upon the bond as reformed in accordance with the court’s second and third findings of law.
Two questions are presented for decision, as follows: (1) Is the surety liable, under the conditions of the bond as exe
Under the language of the bond as executed the obligation
Ordinarily, under the provisions of section 6491, supra, in an action for debt on a bond all of the obligees are necessary parties to the-action, the bond being as to them joint and not several. (Montana Min. Co. v. St. Louis M. & M. Co., 19 Mont. 313, 48 Pac. 305.) It affirmatively appears that the bond was executed jointly by the appellant with the construction company. However, it was optional with the plaintiff to make both the principal and the surety on the bond parties to the action (sec. 6492, Rev. Codes), even though it was apparent on the face of the complaint that both obligors to the contract should properly have been made parties in order to
There is a sharp conflict in the evidence as to the terms of the bond required to be furnished by( the Kennedy Construction Company on the granting of a stay of execution in the damage suit, one witness (Attorney Hall) contending that the bond intended and demanded was to be in terms a siopersedeas bond, as provided for by section 7102 of the Revised Codes, and the other witness (Attorney Frank Woody) insisting that the provisions of the bond as he understood the requirements were to be identical in form with the bond in fact furnished and filed, conditioned alone that the defendant construction company would take an appeal to the supreme court of the state of Montana if motion for a new trial was overruled, or, upon failing to take such appeal, pay the amount of the judgment on demand. However that may be, the fact remains that the appellant provided the character of bond required by order of court to be furnished and filed. It is executed as to conditions as stated in the order of the court and , the application made therefor to the appellant. The order of the court directing the furnishing of the bond points out the object and purpose of the bond and indicates its conditions as follows: “In this case the defendant James Kennedy Construction Company is allowed ten days within which to file a bond in the sum of $17,800 on stay of execution, and it is ordered that execution be stayed during the ten days and upon the filing of bond as required, execution be stayed until the disposition of defendant’s motion for a new trial or further order of the court. Counsel being present and having consented to this order.”
Counsel, if not satisfied with the conditions of the bond filed, should have complained to the court. ■ It affirmatively appears that the bond was examined by Attorney James L. Wallace, chief counsel for the respondent, as to its conditions after it was filed and long before affirmance of the judgment
But it is vigorously contended by respondent that Attorney
The principles of agency cited by counsel for respondent can have no application whatsoever in this case, as it appears that the attorney for the construction company, Frank Woody, did not execute the bond in question as agent for the surety company. His capacity as agent for the surety company in the execution of bonds was limited, in that he was not possessed of authority to execute such bonds independently of concurrence with another of the four persons mentioned in the general power of attorney given by the surety company for the execution of bonds in the county of Missoula, state of Montana, on behalf of the surety company.
Great reliance is placed by counsel for respondent upon the decisions of this court in Parchen v. Chessmm, 49 Mont. 326, Ann. Cas. 1916A, 681, 142 Pac. 631, 146 Pac. 469, and Parchen v. Chessman, 53 Mont. 430, 164 Pac. 531, in support of their contention that the bond in this action should be reformed, and, as reformed, the, judgment sustained. These decisions are clearly distinguishable, (1) because the action ivas solely between the parties to the promissory note attempted to be reformed, and (2) mutual mistake was shown.
The statute under whieh this case was brought reads as
“A mutual mistake is one which is reciprocal and common to both parties, where each alike labors under the same misconception in respect to the terms of the written instrument, and sometimes of the agreement itself.” (23 R. C. L. 328.)
In this case the mistake, if any, was unilateral, i. e., made alone by respondent or her attorneys, and, not being mutual or a mistake of one party which the other party at the time knew or suspected, reformation is not authorized. In such a case rescission is the proper remedy. (23 R. C. L. 328.)
Thus, we have before us the bond with its conditions as executed, and it must be interpreted in accordance with the law. “A contract must be so interpreted as to give effect to the mutual intention of the parties, as it existed at the time of contracting, so far as the same is ascertainable and lawful.” (Sec. 5025, Rev. Codes.) , “The language of the contract is to govern the interpretation, if the language is clear and explicit and does not involve an absurdity.” (Id., sec. 5027.) “When a contract is reduced to writing, the intention of the parties is to be ascertained from the writing alone, if possible.” (Id., sec. 5028.) “However broad may be the terms of the contract, it extends only to those things concerning which it appears that the parties intended to contract.” (Id., sec. 5037.) (See White v. Hulls, ante, p. 98, and State Bank of Darby v. Pew, ante, p. 144.)
Applying the law with reference to a construction of the contract, it appears that the conditions of the' bond were performed and appellant' cannot now be held responsible for conditions neither required to be in the bond nor in fact included
Whatever impulses may control individual action, courts must be governed by law. It is their province to interpret contracts which are open to interpretation, or they may enforce obligations, but it is beyond their power to make agreements for parties or to alter or amend those which the parties themselves have made. Courts may enforce, but not create, contractual liabilities. (Bank v. Pew, supra; Frank v. Butte etc. Min. Co., 48 Mont. 83, 135 Pac. 904.)
A mistake will not be relieved against unless the real
In this case there is no evidence of mistake, mutual or otherwise. The character of bond ordered by the court was furnished and it was not objected to. It would manifestly be inequitable to read into the conditions of the bond new terms, even though respondent may suffer in consequence of the oversight or misinterpretation of counsel.
A separate bond for costs on appeal in the sum of $300' was furnished by defendant surety company upon the appeal to the supreme court from the order overruling motion for a new trial in the damage case, as required by section 7101 of the Revised Codes, and the respondent should have exacted a supersedeas bond in protection of her rights as provided in section 7102, or, in default thereof, should have had exe
There' is no showing of fraud, mutual mistake, nor the mistake of one party which the other at the time knew or suspected, and reformation of the bond was improper, and the judgment appealed from is without foundation.
It is clear that the trial court was in error in finding as a matter of law, that the surety company is liable upon the bond without reformation, and also that a reformation of the bond should be made as prayed for, and in thereupon entering its final decree on the bond as reformed. The conclusions made by the trial court are inconsistent, and upon neither theory can the judgment be sustained.
For the reasons stated, the judgment is reversed and the cause remanded.
Reversed and remanded.