262 F. 66 | 3rd Cir. | 1920
These writs-of-error bring here for review five judgments of the District Court entered on verdict in a proceeding 'wherein five actions were consolidated and tried as one. The Copper Process Company was plaintiff; the Chicago Bonding and Insurance Company was defendant. The actions were on bonds of the defendant company, each for $52,400, given the plaintiff company to assure performance by the Bird Coal and Iron Company of its undertakings in the same number of contracts between it and the Copper Company for the sale and delivery of pig iron. The Iron Company defaulted on all five contracts. The Copper Company sued the Bonding Company on all its corresponding bonds; verdicts were rendered and judgments entered for the Bonding Company; whereupon the Copper Company sued out these writs-of-error.
The record is a large one; the specifications of error are fifty-nine in number. Of these, twelve are directed to the judge’s charge; the remaining forty-seven concern rulings on the admission and exclusion of testimony. Whether any particular ruling or instruction involved error, and if,so, whether such error was prejudicial or harmless, it is impossible to determine by considering each ruling or instruction separately and alone. It is only possible after reading the whole record in' order to ascertain tire real issues and to find the theory on which the trial judge tried them. Experience shows that when a trial judge is wrong in his conception of the issues, or of the principles of law applicable to them, his errors are likely to be many and also to be prejudicial; but if, on the other hand, the trial judge has properly grasped the issues and has tided them under applicable law, his errors are likely to be few and harmless.
On this theory of review, we shall follow the case in outline as pleaded and tried.
The Copper Company’s statements of claim filed in the five actions are identical, except as the contracts for whose performance the several bonds were given called for pig iron deliveries in different months of the year 1917, beginning with the month of June and ending with the month of October. In each statement of claim it appears that the Copper Company declared on the indemnity bond of the Iron Company, as principal, and the Bonding Company, as surety, for $52,400, alleging, first, the execution of the bond, and, second, its breach by the Iron Company, making the bond by reference a part of the pleading. The bond assures the performance of the contract in customary terms, and, by reference, embodies the contract. The contract provides for the purchase by the Copper Company and sale by the Iron Company of 4,000 tons of Talladega pig iron of a given analysis during a given month at the price of $13.10 per ton delivered f. o. b, Talladega, Alabama, payments to be made on a given date.
The contracts bear date March 13, 1917; the bonds April 3, 1917.
Turning to the record, it appears that at the trial the Copper Company, to support the averments of its pleadings, formally and briefly proved the execution of the bonds, the breach of the contracts by the
The Copper Company has assigned but oné error in the trial of its case in chief. This relates to a ruling of the trial judge in allowing the Bonding Company to lay grounds for contradiction. We dispose of this assignment here as involving no error.
So far, there was nothing in the case out of the ordinary. The trouble began with the Bonding Company’s defence, and its defence began with its pleadings.
The defence of the Bonding Company, as pleaded, was, in the main, twofold:
First. That the contracts appended to the bonds when sued on were not the contracts appended to and covered by the bonds when issued; and that, in consequence, the contracts of indemnity sued on, are not the contracts of indemnity which it executed and delivered.
Second. That it was induced to enter into the bonds by fraud of the Iron Company with the knowledge and connivance of the Copper Company.
These defences, as pleaded, were, in a word, non est factum and fraud.
To sustain the first defence, the Bonding Company introduced evidence tending to show that the bonds of indemnity into which it entered with the Copper Company did not cover contracts between the Copper Company and the Iron Company for the purchase and sale, monthly, of 4,000 tons of pig iron at $13.10 a toil as declared by the Copper Company in its pleadings, but covered, on the contrary, other contracts purported to have been entered into by the Copper Company and Iron Company, for the purchase and sale, monthly, of 2,000 tons of pig iron at $26.20 a ton; that copies of the supposed contracts between the two companies containing the items last given were certified to the Bonding Company by the Iron Company and were appended to the bonds when they were executed and delivered to the Copper Company; that between the time of their delivery and the bringing of these suits, the copies of the contracts so appended were removed,from the bonds and copies of the real contracts substituted for them, during all of which time the bonds and accompanying copies of contracts were in the possession and control of the Copper Company. By this evidence, the Bonding Company offered to support its charge that there was a substitution of contracts and that the substitution was the act of the Copper Company. This evidence was, of course, controverted. On this issue of substitution there was ample evidence, properly admitted under the pleadings, for a finding by the jury in favor of the Bonding Company. As the jury’s verdict for the Bonding Company was based either on this issue of substituted contracts or on the next issue of fraud, the Copper Company is concluded by the verdict on this issue.
The substance of this testimony was that the Copper Company was not at any time concerned in any business other than its transactions with the Iron Company; and that the Iron Company had as its one asset an interest in an option or arrangement with Laden-burg, Thalman & Company of New York, for the operation of a blast furnace at Talladega, Alabama, which had long been out of use. When the Iron Company was practically without funds or tangible assets, it entered into the five contracts with the Copper Company on March 13, 1917, whereby it undertook to sell and deliver to the Copper Company, monthly, for a period of five months, 4,000 tons of pig iron at $13.10 a ton; a price in the Birmingham district, little, if any, above cost of production. With these contracts made, the two companies entered into another contract referred to at the trial as the “Underlying Agreement” or the “Y” agreement, reciting the five contracts just mentioned and providing, in consideration thereof, for an advance or payment by the Copper 'Company to the Iron Company of the sum of $50,000, and a further sum of $25,000, both sums to be placed to the credit of the Iron Company in the Commercial Trust Company at Philadelphia; the latter sum, however, to be drawn on by the Iron Company by voucher checks showing that the money was to be paid for certain purposes specified in the agreement, the one pertinent to this case being “Premium on surety bond, believed to be $2,700.” This agreement further provided that if the. Iron Company should be prevented by fire, strikes, riot, .mob, or earthquake from making deliveries on the 20,000 tons of .pig iron covered by the five contracts referred to, then the Iron Company would sell and deliver to the Copper Company its full production of pig iron of whatever grade and quality, at a price of $7.50 per ton below the market price. The curious feature of this agreement is, that nowhere in it is there provision for repayment or return to the Copper Company of the moneys it agreed to advance to the Iron Company. This agreement was signed some time in March, 1917, and, in part performance, the Copper Company placed $75,000 in bank to the credit of the Iron Company.
With these contracts made and outstanding, the Iron Company, in carrying out its undertaking to give the Copper Company bonds assuring the performance of its sales contracts, applied to the Bonding Company for five bonds of $52,400 each. To induce the Bonding Company to enter into these bonds, an officer of the Iron Company
To aid the.Iron Company in carrying out its undertaking in the “Y” agreement to obtain indemnity bonds for the protection of the Copper Company on the sales contracts, for which the Copper Company had provided $2,700, the President and Secretary of the Copper Company went to the bank with Wilson, who had received from the Iron Company a check drawn to his order for $6,000. There the President of the Copper Company endorsed Wilson’s $6,000 check and got from the bank a draft for a dike sum. With the bonds prepared for signature and with this $6,000 draft, the Secretary of the Copper Company accompanied Wilson to Detroit. On arriving in that city, the Secretary had the draft cashed at a local bank and turned the whole $6,000 over to Wilson. What Wilson did with it does not appear. This large sum of money was drawn and disbursed supposedly for the payment of premiums on the bonds, when, in fact, the aggregate amount of all premiums was but $655. Only this sum reached the Bonding Company. After the money had been paid Wilson, Evans, an agent of the Bonding Company, at its Detroit Office, delivered the bonds to the Secretary of the Copper Company, in the possession of which concern they remained until suit. The bonds were executed on or about April 3.
When the transactions were reported to its home office on or about May 1, 1917, the Bonding Company immediately made disclaimer and also made formal tender of the premiums paid.
The Iron Company breached its first contract in June; in fact, it delivered no iron under any of the five contracts. Testimony was offered and admitted of acts and conduct of officers of the Copper Company, following the transactions concluded by the Bonding Com
It was in the admission of evidence tending to establish these facts that most of the court’s rulings now assigned as error were made. While there is a great number of assignments of error, the errors assigned may fairly be grouped, as was done in the plaintiff’s brief, according to the subject matter to which they relate, as follows:
(1) Exception to the so-called “Underlying Agreement,” admission of evidence relating thereto and charge to the jury as to the effect thereof.
(2) Exceptions to admission of evidence of misrepresentations made to the Bonding Company by officers and agents of the Iron Company without the Copper Company’s knowledge and charge to the jury as to the effect thereof.
(3) Exceptions to admission of evidence of' subsequent transactions between the Copper Company and the Iron Company and charge to the jury as to the effect thereof.
The record shows that the judge had a thorough grasp of the case; that he carefully kept in mind throughout the trial the precise issues 'made by the pleadings; and that, in his rulings, he was liberal in admitting testimony to sustain them. These issues and the manner in which they should be tried are nowhere better stated than by counsel for the Copper Company .himself when addressing the judge on an objection to an offer of testimony. He said:
“TRe questions that arise in this case are these: First, as I understand it, were the bonds executed? Second, was there any fraud in the procurement of the bonds? Third, has there been any variation of the terms of the contract since the bonds were executed to release the surety? .These are the three questions involved in this case and any evidence that directly or mdvrectly dear's on that is entirely appropriate.”
Fraud may be committed by the suppression of truth as well as by the suggestion of falsehood. 12 R. C. D. 305, and.cases. But the law distinguishes between passive concealment and active concealment, the distinction being that in active concealment there is implied a purpose or design. As a general rule, to constitute fraud by concealment or suppression of the truth there must be something more than mere silence, or a mere failure to disclose known facts. There must be some occasion or some circumstance which imposes on one person the legal duty to speak, in order that another dealing with him may be placed on an equal footing. Then a failure to state a material fact is equivalent to concealment of the fact and amounts to fraud equally with an affirmative falsehood. Pickering v. Day, 3 Houst. (Del.) 474, 95 Am. Dec. 291; 12 R. C. R. 305, 306, 307, 308, and cases.
We are not prepared to say — assuming the relations of the two companies otherwise free from fraud — that if the Copper Company had allowed the Iron Company to negotiate alone for the bonds, it would have been its duty to seek out the Bonding Company and inform it of the “Y” agreement. But that was not what happened. The Copper Company was rendering personal as well as financial aid to the Iron Company in securing the bonds which it exacted for its own benefit. Its officer came into direct communication with an officer of the Bonding Company and discussed the bonds. In that discussion, the Bonding Company was endeavoring to ascertain what risks it would incur on entering into the proposed indemnifying obligations. The Bonding Company, speaking through an officer, asked the Copper Company, addressing its Secretary, whether any advances had been made against the contracts it was about to assure. To that question, the Copper Company, through its Secretary, responded r “Absolutely not.” If the Secretary made that reply (which he denied) he made it with full knowledge of the “Y” agreement.
What bearing had the “Y” agreement on the Bonding Company’s indemnity risks? That agreement provided for an advance by the Copper Company to the Iron Company of $75,000. Just the character of the agreement it is difficult to define — whether an advance against contract deliveries of pig iron, an out-and-out loan of money, or a partnership contribution — at any event, the Copper Company paid the Iron Company $75,000 and recited as a “consideration” for this payment the five sales contracts in question.
These facts appearing in the “Y” agreement itself, connected with
In the second group of exceptions we find no error in the admission of evidence of misrepresentations made by the Iron Company, without the plaintiff’s knowledge. This because it was necessary, first, to show the Iron Company’s fraud and misrepresentations before it was possible to show the Copper Company’s connivance therein. Evidence of connivance was present, and was sufficient, we think, to submit to the jury.
The judgment below is affirmed.
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