Cornet v. Boyle
116 Mo. App. 430
Mo. Ct. App.
1906
Check Treatment
NORTONI, J.

(.after stating the facts) — 1 It becomes the duty of the court to construe the writing, and to do this intelligently, we must first inquire its purpose. It is patent that Lingo, the grantee under the deed from Mrs. Addison, was not satisfied with the covenant therein against incumbrances, in view of the fact that the property then stood incumbered with the current taxes to the amount of $144.30, which was not then susceptible *435of discharge for the reason stated. He therefore required a further security collateral to that covenant, to the end that he should be secure from any possible failure of Mrs. Addison to discharge the incumbrance. We reach this conclusion from the plain wording of the instrument, to-wit: “And whereas said taxbills are not ready for payment and said taxes cannot be paid at this date, and whereas said Lingo insists that the amount of said taxes, to-wit, $144.30, should be retained by a third party to guarantee the payment of said taxes when payable within the time specified by law,” etc. The purpose then was to “guarantee the payment” of this amount that Mrs. Addison’s fund was deposited to guarantee the payment of Mrs. Addison’s debt. The debt was not thereby paid but it remained a valid and subsisting obligation against Mrs. Addison for the payment of which she was liable. In the event she failed to discharge it within the time specified by law, the fund on deposit should be used for that purpose to the end that Lingo, the grantee, should be held harmless.

This was the state of facts Avithin the contemplation of the parties at the time Cornet. & Zeibig turned the guarantee fund over to Boyle upon receipt of Avhich Boyle obligated himself, shorn of all unnecessary verbiage, as following: “Now therefore, said Richard A. Boyle hereby . . . binds himself . . . that said taxes will be paid, if not, that he will pay the same and hold harmless said grantors . . . Cornet & Zeibig . . . against all claims, costs or damages against said taxes for 1899 on said property and he does hereby guarantee payment of same within the time required by law.” Now the question is, for whom did Boyle guarantee upon accepting the fund? He must be understood to have guaranteed that Mrs. Addison would pay the taxes within the time required by law and in event she failed to do so, he would discharge the same with the guarantee fund belonging to her then in his hands and hold harmless the grantor, Mrs. Addison, and Cornet & Zeibig, from *436further responsibility thereon. This must be true for the reason that the debt about which the contract was executed and collateral to which the deposit was made, was the debt of Mrs. Addison and the moneys were her moneys and Mrs. Addison deposited the collateral thereto as a guarantee therefor. He could not have undertaken to stand good for the debt as a debt of Lingo or Hays or of himself, for the obligation to pay rested upon neither one of these parties at the time of the execution of the contract under consideration. But being the debt qf Mrs. Addison, it was not only her right, but the obligation rested upon her as well to discharge the same and upon discharging the debt to which the fund was held as collateral, she was of course entitled to the return, of the collateral. The deposit having been made in the first instance by Mrs. Addison with Cornet & Zeibig, there was privity between them and it was proper for her to apply to those with whom she had deposited the collateral to recover the same. And it was proper conduct on the part of Cornet & Zeibig to promptly repay, as they did; the taxes having been paid by Mrs. Addison within the time required by law prior to December 31st. [Sec. 9225, R. S. 1899.] The principal debt for which Boyle held the fund as collateral was thereby extinguished within the time specified and Boyle should have forthwith returned to Cornet & Zeibig the collateral held by him. There was privity existing between Cornet & Zeibig and Boyle and it was proper for them to exhibit the tax receipts and demand the return of the money from Boyle and Boyle should have forthwith refunded, as Cornet & Zeibig had done. Boyle acted at his own risk in turning the fund over to Hays. No authority is found in the writing therefor and if loss occurs to him on account thereof, it should fall where it belongs, not on Cornet & Zeibig who are innocent and injured parties. There is privity existing between Boyle and Hays and Boyle should proceed to call him to' account for his conduct in the matter which is indeed reprehensible.

*437Entertaining these views, the judgment of the trial court will be reversed and the cause remanded with directions to the circuit court to enter judgment in favor of the appellants for $144.30 together with interest at the rate of six per cent per annum from the date of the filing of this suit before the justice. It is so ordered.

Bland, P. J. and Goode, J., concur.