Equitable Manufacturing Co. v. Davis

Feb 3, 1908
Reporters:
, ,
Before:
Hoiden
Hoiden, J.

(After stating the facts).

1. The contract provided that the plaintiff was to “send a bond that clerk of court knowing sureties would accept.” Part of the contract was in the form of an order directed to the plaintiff in-Iowa City, Iowa, from the defendant, who resided in Brunswick, Georgia. The defendant contends that the clerk of court referred to could be only the clerk of the superior court of the county in which Brunswick is situated. We do ‘not think so. It can not be said that the plaintiff was required to execute a. bond- in the *70county in which Brunswick was situated, as there is no‘provision to that effect ‍​​​‌‌‌‌​​​‌​​​‌​​‌​‌​‌​​​‌​​‌​​‌‌​‌​​‌​​​‌‌​‌‌​‌​‌‌‌​‌‌​​​​​‌‌‌​​‌​‌​​‌‌​​‌​‌​​‌‌​​​​​​‌​​​‌​‌​​‍in the contract, but the contrary is indicated by the fact that the plaintiffs, who resided in a distant State, were to send .a bond. .It can not be maintained that the clerk of the district court of Johnson City, Iowa, if he knew the sureties, would not come within the description of the clerk referred to in the contract.

2. One of the main questions involved in this ease is whether or not the sending of the bond by plaintiff was a condition precedent to the settlement by defendant of the debt due. The plaintiff agreed in the contract to send a bond in which it would guarantee profits from the sale of the jewelry to a certain amount, upon condition that defendant settle for the goods as provided in the contract. The contract provided that unless notes were given for the debt as stipulated in the contract, “terms are cash 15 days.” Notes were not given. The meaning of this condition is that the obligation of the plaintiff in the bond was not binding if the defendant failed to settle for the goods within 15 days, and the bond should have been sent before this 15 dajrs expired. The only purpose of the bond was to protect the defendant as provided in ‍​​​‌‌‌‌​​​‌​​​‌​​‌​‌​‌​​​‌​​‌​​‌‌​‌​​‌​​​‌‌​‌‌​‌​‌‌‌​‌‌​​​​​‌‌‌​​‌​‌​​‌‌​​‌​‌​​‌‌​​​​​​‌​​​‌​‌​​‍the bond, and the defendant ought not to be compelled to settle for the goods before the bond is sent. Nor should defendant be required to settle for the goods if plaintiff sent the bond but did not send it in 15 daj^s, because defendant failed to settle in 15 days, and this failure made the bond void and useless to defendant. The contract on its face shows that the defendant resided in Brunswick, Ga., and the plaintiff resides in a distant State; and the meaning of the contract is that if the defendant should be required to bring any suit in the matter referred to in the bond against the plaintiff, she should have some protection more than the individual liability of the plaintiff, but no protection would be afforded to her if she settled for the goods before the bond was sent, as the bond might never be sent after the defendant paid the full purchase-money under the contract. On the other hand, if defendant failed to pay the debt when due, it would be-useless to send the bond after this failure, because by the very terms of the bond this failure made the bond void. Why should the plaintiff agree to put this in the bond, if it was not ‍​​​‌‌‌‌​​​‌​​​‌​​‌​‌​‌​​​‌​​‌​​‌‌​‌​​‌​​​‌‌​‌‌​‌​‌‌‌​‌‌​​​​​‌‌‌​​‌​‌​​‌‌​​‌​‌​​‌‌​​​​​​‌​​​‌​‌​​‍to send the bond before the debt was due by the defendant? The fact that the contract provided that the guar*71antee in the bond was upon the condition that the purchaser- settle for the goods when the debt was due shows that it was in the mind of the parties and was the meaning of the contract that the bond should be sent by the time when this settlement was to be made by the defendant, and the sending of this bond by that time was a condition precedent to any settlement which the defendant agreed to make.

3. The sending of the bond being a condition precedent to payment for the goods by the defendant, it was necessary for the plaintiff to prove that by the time fixed under the contract for the defendant to make payment they sent to the trust company at Brunswick a bond of the kind called for by the contract, before it would be entitled to demand the purchase-money from the defendant, or sue her therefor. The bond offered in evidence by the plaintiff was not admissible, because there was no proof of its execution as required by law. Neither of the sureties nor any other witness testified to its execution. The execution of this bond, whether within ‍​​​‌‌‌‌​​​‌​​​‌​​‌​‌​‌​​​‌​​‌​​‌‌​‌​​‌​​​‌‌​‌‌​‌​‌‌‌​‌‌​​​​​‌‌‌​​‌​‌​​‌‌​​‌​‌​​‌‌​​​​​​‌​​​‌​‌​​‍or without the. State, could not be proved by the certificate of the notary public who acknowledged it, nor by the affidavit of the sureties. The provisions of our law applicable to deeds executed out of the State do not apply, and the only mode of proving the execution of this bond would be the usual way of proving the execution of instruments where the method of proof is not specially provided for by statute. The court committed no error in refusing to allow the writing purporting to be a bond to be introduced in evidence.

4. The defendant introduced no evidence, but at the conclusion of the testimony offered by the plaintiff the defendant made a motion that the court direct a verdict in her favor; whereupon the plaintiff made objection to the direction of a verdict, and urged that if it was the opinion of the court that the plaintiff had not made out a prima facie case, it would be improper and illegal to direct a verdict against it, the meaning of which was that a non-.suit should be granted instead of directing a verdict. Whenever the plaintiff fails to prove his ease as laid in his declaration, the proper practice is to grant a nonsuit instead of directing a verdict ‍​​​‌‌‌‌​​​‌​​​‌​​‌​‌​‌​​​‌​​‌​​‌‌​‌​​‌​​​‌‌​‌‌​‌​‌‌‌​‌‌​​​​​‌‌‌​​‌​‌​​‌‌​​‌​‌​​‌‌​​​​​​‌​​​‌​‌​​‍in favor of the defendant, in order that the plaintiff may have the opportunity of renewing his suit. Hines v. McDellan, 117 Ga. 845 (45 S. E. 279) Barnes v. Carter, 120 Ga. 895 (48 S. E. 387) ; *72Zipperer v. Mayor, 128 Ga. 135 (57 S. E. 311). We think the court committed error in directing a verdict in this case in favor of the defendant, and the judgment of the court below is affirmed, with directions that the verdict and judgment thereon be set aside and a judgment of nonsuit entered in lieu thereof, and that the defendant in error pay the costs of prosecuting the writ of error.

Judgment affirmed, with direction.

All the Justices concur, except Atkinson, J., disqualified.