212 F. 908 | 8th Cir. | 1914
This writ of error assails a judgment against the defendant below on a bond of indemnity alleged to have been given by him to the Federal Union Surety Company, on the sole ground that the court below erred because it denied the defendant’s motion to instruct the jury to return a verdict for the defendant because, as counsel for the defendant claimed, there was no substantial evidence that the bond was ever executed and delivered by 'the defendant.
H. J. Sannan testified that he had been assistant cashier of the bank' for a part of four years just preceding, December 30, 1907, while Gron-vold had been a depositor with the bank, that he had received and cashed many checks drawn by Gronvold, had examined and become familiar with his signature, that he knew it when he saw it, that the two signatures on the application, one to the covenant of indemnity and the other to the value of his property, were the genuine signatures of Gronvold, and that the signature of F. T. Gronvold on the bond of indemnity was also his genuine signature. He also testified that on December 30, 1907, after he had ceased his services with the bank, he was called to it by Andy Jones, the cashier, who presented to him the printed application which bore the two signatures of Gronvold and requested him to fill the blanks therein, which he did, that at the same time Jones presented to him the printed bond which bore the signatures of Gronvold and McBride, and requested him to fill the blanks in and complete that instrument, that he did so, and that at the same time Jones executed it on behalf of the bank, as its cashier. The blanks which were filled by Sannan consisted chiefly of places for names and amounts. Gronvold testified that he had signed other bonds for the bank, one to the state for the safe-keeping of its deposits and one for the safe-keeping of deposits of funds of the county. When shown the application and the two signatures F. T. Gronvold upon it, he testified:
“It looks some like my signature. If it were not for the fact that I know I never knowingly signed such a document, I would have to say it looks so much like my signature it might be my signature. * * * ”
He testified that he refused a request of Jones, the cashier, to sign some indemnity bond before Christmas, and he finally testified:
“I have never signed,Exhibit B (the bond). I do not know if Exhibit B was the document he showed to me. He showed me an application there, a surety company application, and wanted me to sign. That is the only recollection I have of the surety company’s bond, and after reading that over I told him I would not sign it.”
The question for determination in this court is not the preponderance or the sufficiency of the evidence; it is whether or not there was any substantial evidence to sustain a finding of the jury that Gronvold executed and delivered the application and the bond. The testimony of Sannan is clear, direct, and unimpeached that Gronvold’s signatures on these instruments were genuine and that the printed instruments ■were in the possession of Andy Jones, the cashier of the bank, with the blanks for the names and amounts unfilled on December 30, 1907, and Gronvold’s testimony indicates that Jones was the officer who attended to the business of procuring necessary bonds for that institution. Here is substantial evidence to sustain the finding of the jury that Gronvold signed the printed blank application and the printed blank bond and that they were in the custody of the cashier of the bank, the officer who attended to procuring bonds for the bank on December 30, 1907, when they bear date. The jury was therefore warranted in finding, and it undoubtedly did find, those facts, and in the further discussion of- this case they must be taken as established. This conclusion, together with the blank instruments themselves, presents substantial evidence not only that he signed them, but that he signed them for the purpose of indemnifying the surety- company against losses on its bond and to induce it to execute its bond, and that he knew, or was estopped by his acts and omissions from denying ■ that he knew, that it was the Federal Union Surety Company and no other that was to be indemnified thereby and induced to execfite its bond. The printed application contained just above Gronvold’s first signature the following covenant without any blank whatever in it:
“In consideration of the Federal Union Surety Company executing the bond for which the above-named applicant has applied, or any other bonds for which said applicant may hereafter apply, I hereby covenant and agree to indemnify and keep indemnified said company from and against any and all loss, cost, damages and expenses of every kind and nature which may be sustained or incurred by said company by reason or in consequence of the execution of any of said bonds.”
The printed bond, omitting all writing inserted in the blanks, contained the following:
*911 “This agreement witnessetk: That whereas, we, the -undersigned, have requested the Federal Union Surety Company, a corporation organized under the laws of the state of Indiana (hereinafter called the company) to sign and execute a certain bond or undertaking, * * * reference to which is hereby made for the purpose of certainty, and a copy of which instrument is or may be hereto attached; and whereas, the company has signed and executed, or is about to sign and execute the said instrument upon condition of the execution and delivery hereof, and upon the security and indemnity hereby and herein provided:'
“Now, therefore, in consideration of the execution, of said bond, and the sum of one dollar in hand paid to us by the company, the receipt whereof is hereby acknowledged, we, the undersigned, hereby covenant and agree with the company, its successors and assigns, in manner following: * * * That we will at all times indemnify and keep indemnified the company, and hold and save it harmless from and against any and all demands, liabilities and expenses of whatsoever kind or nature including counsel and attorney’s fees, which it shall at any time sustain or incur by reason or in consequence of having executed the said instrument; and that we will pay over, reimburse and make good to the company, its successors and assigns, all sums and amounts of money which the company or its representatives shall pay or cause to be paid, or become liable to pay, under its obligation upon said instrument, or as charges and expenses of whatsoever kind or nature, including counsel and attorney’s fees, by reason of the execution thereof, or in connection with any litigation, investigation or other matters connected therewith; such payment to be made to the company as soon as it shall have become liable therefor, whether or not it shall have paid out said sum or any part thereof.”
It was the duty of Gronvold to read the blank instruments which he signed and either placed or permitted to be placed in the custody of the cashier of the bank, for the printing in these blank instruments thus signed specified the plaintiff by its name and were clearly calculated to induce action by it. If he read these instruments he knew that they contained covenants to indemnify the Federal Union Surety Company by name against any loss it might incur by executing any bond that might be specified therein after the blanks were filled, and if he did not read them he was guilty of such culpable negligence that against the innocent obligee in these instruments who has been induced thereby to sign the bond of the bank as surety and to suffer the losses for which it sues, he is estopped from denying what he must have learned if he had read them. Glenn & Pryce v. Statler, 42 Iowa, 107, 110.
There was therefore no error in the refusal of the court to instruct the jury for the defendant, and the judgment below must be affirmed.
SMITH, Circuit Judge, concurs in the result.