Lead Opinion
This suit was brought by the Missouri, Kansas & Tеxas Railway Company against the American Surety Company in the Circuit Court of the City of St. Louis on a bond of indemnity given by the firm of Graham & Miller as principal and the defendant, the American Surety Company, as surety, to the plaintiff' in the sum of $10',000. Upon a trial to the court there was a judgment in favor of the plaintiff, from which defendant appeals. The bond sued on was as follows:
“Know All Men by These Presents, That we, J., T. Miller and L. G. Graham, composing the firm of Graham & Miller, principals, and American Surety Company of New York, as surety, are indebted to the Missouri, Kansas & Texas Railway Company, hereinafter called the ‘Railway Company,’ in the penal sum of ten thousand dollars, for the payment whereof well and truly to be made we hereby bind ourselves, our heirs and representatives, successors and assigns, jointly and severally, by these presents.
‘ ‘ The obligation of this bond is such that,
“Whereas, The said Graham & Miller are general railroad tie contractors, engaged in the business of furnishing to railway companies crossties, switch ties and lumber, in the State of Missouri; and,
“Whereas, The said Graham & Miller for several years past have been selling ties and lumber to the Railway Company and desire to furnish ties and lumber to said Railway Company during the year 1899; "and,
“Whereas, The Railroad Company is willing to continue purchasing of said Graham <⅜ Miller ties and *99 lumber, from time to time as it may want them, provided the same conform to specifications and requirements of the Railway Company and are accepted by its -fully authorized agent after inspection; and, provided further, that said Graham & Miller will hold it, the Railway Company, harmless by reason of any and all .claims which may be made against it by laborers, materialmen and others, to and on account of any ties and lumber furnished by them to the Railway Company, between January 3, 1898, and January 1, 1900’.
“Now, Therefore, If the said Graham & Miller shall well and truly protect and indemnify the Railway Company against all loss and damage, costs and attorney fees, by reason of any claims which may be made against the Railway Company on account of any ties and lumber which have been or may be furnished by them and accepted by the Railway Company, as aforesaid, by any person or persons whatsoever, and warrant and defend their title to all such ties and lumber, then this obligation to be void, otherwise to- be and remain in full force and effect.”
Omitting the formal allegations of the petition as to the nature of the parties, the setting out of the bond according to its tenor, the breach of same and defendant’s liability thereon, the salient facts alleged are that during the year 1899 plaintiff purchased from Graham & Miller, and said firm furnished to plaintiff, a large number of railway ties, at a specified price, which aggregated $21,207.10, and upon the acceptance by and the delivery to the plaintiff of these ties the latter paid Graham & Miller the aggregate amount due therefor in full; that after plaintiff had paid Graham & Miller the Bagnell Timber Company brought a suit in the Circuit Court of Pettis County against Graham & Miller and the Missouri, Kansas <& Texas Railway Company, the plaintiff herein. Before a trial the Timber Company dismissed as to Graham <& Miller and proceeded against the Railway Company alone. In this action it was claimed that there was a balance due the Timber Company from the firm
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of Graham & Miller and the Railway Company on account of the same ties which had been sold and delivered by said firm to the Railway Company and had been paid for by the latter. In this petition the Timber Company prayed that the judgment thus sought bq declared a lien on the lines of the Railway Company; that upon the institution of that suit the Railway Company notified the American Surety Company, the defendant herein, of said action, and that the Railway Company had already paid Graham & Miller the full amount due said firm for the ties furnished by them to the Railway Company for which the Timber Company was then demanding payment, and that the Railway Company would look to said Surety Company to protect it from any further payment on account of said ties; that said Surety Company, the defendant herein, failed and refused to pay or to cause said Timber Company to be paid the amount claimed by it, but requested the Rаilway Company to prosecute the suit to a final judgment, which it did; that the history of this litigation and the opinions of the Supreme Court in connection therewith are found .in
Defendant, answering, admitted the execution of the bond, the former litigation pleaded, the result of same, the costs accrued, the. subsequent suit by the Timber Company, the judgment rendered in favor of that company against the Railway Company and the payment of such judgment by the latter, followed by a general denial.
Further answering, the defendant sought to set up as res adjudicatei the litigation in the Circuit Court of *101 Pettis County wherein the Timber Company was plaintiff and the Railway Company and Graham <& Miller were defendants. On motion this part of the answer was stricken out and the defendant filéd a term bill of exceptions. At the trial, however, this defense was permitted to be interposed, subject to such objections as might be made thereto.
By consent, a plea of the Statute of Limitations theretofore stricken out of defendant’s answer was reinstated, and plaintiff filed a reply alleging that it contested the suit brought by the Timber Company at the special instance and request of the Surety Company, the defendant herein; and with the understanding that upon the termination of that litigation, if the same resulted unfavorably to the Railway Company, the rights and liabilities as between this plaintiff and this defendant in the bond suit would then be determined. A, jury having been waived, the case was heard by the court sitting as a jury in February, 1919, in the division presided over by Hon. Hugo Grimm. At the April term, 1919, the court found the issues joined in favor of the plaintiff and assessed its damages at $10,000, the full penalty of the bоnd. From this judgment, as stated, the defendant has appealed.
I. This is an action at law. It was tried by the court sitting as a jury. When a case of the character at bar is thus tried, the province of the Supreme Court extends
II. , The findings of the trial court, while based upon all of the evidence, have more particular reference to the testimony upon which the defendant relies to sustain its
III. Of first consideration is the language of the bond itself, which must, of course, be read in its entirety. Ambiguities therein, if any, are, as in construing a policy
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The plaintiff had a contract with Graham & Miller for the purchase from them of railway ties at a specified price.
These ties Graham <& Miller were to go into the market and buy and deliver to the plaintiff. To enforce the performance of this contract plaintiff required Graham & Miller to give it a bond. This bond, by its express terms, was for the protection and indemnity of plaintiff against all loss and damage by reason of any сlaims which might be made against plaintiff on account of any *104 ties which may have been furnished by Graham & Miller to and accepted by plaintiff, and to warrant and defend the title thereto.
From these terms it is evident that the purpose of the plaintiff in requiring the bond was protection; that of Graham & Miller in giving’ it was to insure a continuance of their business relations with the plaintiff; and that of the defendant for a stipulated fee to malm the plaintiff whole in the event of the default of Graham & Miller. Thus it appears that the relations of the parties, as disclosed by the terms of the bond itself, were those of buyer, seller and indemnitor. Other provisions of the bond lend force to this conclusion, viz.: that Graham & Miller, tie contractors, engaged in furnishing railway companies with ties, have for several years been furnishing plaintiff with ties and that the latter is willing to continue to buy from them if the ties furnished conform to the specifications and requirements of plaintiff and are accepted by its agents after inspection—this upon the condition that Graham & Miller will protect and indemnify plaintiff against all loss and damage by reason of any claims which may be made against the plaintiff on account of any ties which have been or may- be furnished by Graham & Miller and accepted by plaintiff and to warrant and defend the title thereto.
IV. The testimony disclosed that the total amount paid by the plaintiff to Graham & Miller for ties during the period nominated in the bond was $21,207.10. The
Before any lawsuit was commenced and when the matter was fresh in the minds of the officers of the Timber Company, that company served notice of a material-man’s lien on the plaintiff, where this language is used:
“Take notice, that we hold a claim against the Missouri, Kansas & Texas Railroad Company for railroad ties furnished and delivered to said Railroad Company, under and pursuant to a contract with Graham & Miller, tie сontractors of said Railroad Company, as shown by the following- account, to-wit:”
Then follows an itemized statement of the Timber Company’s account, identical with the account it subsequently preferred and prosecuted against the Missouri, Kansas & Texas Railway Company and Graham & Miller.
Further than this, before the Timber Company brought suit against the Railway Company and Graham & Miller, William Bagnell, the president of the Timber Company, sent the following notice to Graham <& Miller:
“We thereby serve notice on you' that if the balance of the account on ties delivered to the M., K. & T. Ry. is not fully paid by October 9th, that we will file a lien on the M., K. & T. Ry! on that day, and we wish you would have the kindness to make this settlement so as to avoid this trouble and expense,”
*107 If further persuasive proof were needed to define the relation which the firm of Graham & Miller, the principals in the defendant’s bond, sustained to the Timber Company in this transaction, it is supplied by this notice.
It is quite clear that the Timber Company at the time Rad some doubts about its ability to maintain a lien claim against the Missоuri, Kansas & Texas Railway Company, and so it amended its notice, and subsequently claimed that the ties were sold to the plaintiff and Graham & Miller jointly. But it is now contended that the judgment rendered in favor of the Timber Company against the plaintiff established the fact that the ties in controversy were sold by the former to the latter and not to Graham & Miller and hence there is no breach of the. bond. The probative force of this fact as constituting a plea of former adjudication we will discuss later. Not only was this fact not established, but it was not necessary to establish it to entitle the Timber Company to a recovery in that action. Graham & Miller may have so conducted the business with plaintiff’s knowledge as to render the latter liable to the Timber Company for the ties, without destroying the relation of seller and buyer between Graham & Miller and plaintiff. And while the enforced satisfaction of the liability of the plaintiff to the Timber Company would be a valid defense to an action by Graham & Miller against the plaintiff, it would not destroy the latter ’s rigfit of action against the former, or the surety on their bond, in a suit to recover the amount paid by plaintiff to the Timber Company.
We therefore rule that the proof here adduced is sufficient to sustain the issues pleaded by plaintiff and we affirm the ruling of the trial court to that effect.
Before dismissing the question as to the quantum of proof it is not inappropriate to say, preliminary to the discussion of the next contention, that we have found the testimony for the plaintiff in the instant case much fuller and more forceful than in the preceding cases in relation to the matter at issue.
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Y. The rulings of this court in the former suits concerning the matter in controversy will disclose, whether it has been judicially determined, as contended by defendant, that the Bagnell Timber Company
In the first (
In the second (
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In the third (
This inquiry discloses no ruling in either of these cases, either in express terms or by necessary implication, which lends color to the contention that it has heretofore been judicially determined that the Railway Company did not buy these ties from Graham & Miller but from the Bagnell Timber Company. In the absence of such a ruling the futility of the contention becomes evident. All that was determined which constituted a ruling decisive of that ease was the liability of the Railway Company to the Timber Company. With the reasons therefor we are not concerned further than they may be held to affect the disposition of the instant case.
A more cogent reason exists, however, why the plea of former adjudication cannot properly be interposed in the instant case. It is_ elementary that the concurrence of four well defined identities are necessary to the successful interposition of this plea. They are: identity of
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the thing sned for; identity of the canse of action; identity of persons and parties to the action; and identity as to the quality of the person for or against -whom the claim is preferred. [Scheurich v. Empire Dist. Elec. Co., 188 S. W. (Mo.) l. c. 117; Dibert v. D’Arcy,
Comparing the suit at bar with the three former ones we have reviewed, concerning matters incident to this controversy, Ave find that neither the parties nor the causes of action were the same. In the latter the plaintiff was the Bagnell Timber Company, and the defendants, as the suits were brought, were the Missouri, Kansas & Texas, Railway Company and Graham & Miller; while in the former, plaintiff is the Missouri, Kansas & Texas Railway Company and the defendant is the American Surety Company. In the Bagnell suits- the cause of action was for a balance due on an account, which would have been barred in five years, whereas in the instant case the cause of action is based on a bond in writing under seal which was not barred for ten years. These facts will suffice to demonstrate that at least three of the required identities are absent here, to-wit, that of the thing sued for, the cause of action and the persons or parties thereto.,
In addition, the well-established rule must not be overlooked that before an action can be held to be res adjudicata the parties must have been adversaries in the first suit. A standard text thus concisely states this doctrine:
“Not all the parties to a suit are necessarily concluded by the judgment or decree in a subsequent suit between the same рarties, but only those between whom the matter in issue in the second suit was adjudicated. To be concluded they must have been adversary parties.” [24 Am. & Eng. Ency. of Law (2 Ed.), p. 731.]
Even more forceful is the language of a well recognized treatise on the subject, as' follows:
“In order to make a judgment conclusive on parties they must be adversary parties in the original action.
*111 Thus, a judgment against A and his sureties is no bar in an action between one surety and his co-sureties to recover of each his proportionate share of a judgment of amercement that had been collected of him; while it establishes the demand, it does not establish the liability of the sureties between themselves; that point is not before the court in the action 'wherein the original judgment was rendered.” [Herman on Estoppel and Res Judicata, sec. 138.]
In harmony with the rule as thus declared is the ruling of this court in Charles v. White, 214 Mo. l. c. 211, as follows:
“It may be said that unless the defendants contest an issue with each other, either upon the pleadings between themselves аnd the plaintiffs, or upon cross-pleadings betweén themselves, the judgment or decree will not be res adjudicaba in subsequent litigation between them. There can be no doubt that upon proper pleadings a judgment may determine the rights of the defendants even between themselves, and our code provides for such a proceeding, but a judgment against defendants, if there are no issues between them,' does not bind them as against each other.” (Citing cases.)
To a like effect are Womach v. St. Joseph, 201 Mo. l. c. 480; Garland v. Smith,
VI. It is further contended that the damages sought to be recovered are not within the terms of the contract. In our former discussion of the terms of the bond, the allegations of the petition and the nature of the evidence, we incidentally at least disposed of this
VII. It is contended that plaintiff's canse of action is barred by the statute. In a action upon a bond of
This court, spealdng’ through HAugh, J., in the Bowsey Case, said:
“If the covenant in question is simply a contract of indemnity, then there was no breach thereof until the plaintiff suffered damages by the sale of his property on the 8th day of November, 1862, and his right of action was not barred. If, on the contrary, the covenant in question is not'a contract of indemnity, but an affirmative covenant to pay a certain sum of money at specified times, then a right of action arose in favor of the plaintiff, upon the failure of the defendant to pay at such times.”
In State ex rel. v. Logan,
“According to defendant’s contention relators’ cause of action was barred before it came into being, for certainly relators never had any cause of action prior to their having any dealings with or interest in this land. To so construe the statute is violative of the fundamental rule applicable to the construction оf all limitation statuses, to-wit: that the same begins to run "only when the cause of action asserted accured to the person asserting it and it does not accrue in the legal sense until it comes into being and the parties benefited have a right to assert same in court (25 Cyc. 1067).”
In addition to the numerous authorities cited and discussed in the Logan case, are the following: Huse v. Adams,
An exhaustive note to Aachen v. M. & F. Ins. Co., 15 L. R. A. (N. S.) l. c. 164, reviews numerous cases de *114 cided by courts of last resort in other jurisdictions in harmony with ohr own rulings, in which it is held, in suits upon bonds of indemnity, that the cause of action accrues and the statute of limitations- begins to run at the time the damage occurs. We find no authority to the contrary.
The judgment in favor of the Bagnell Timber Company against the plaintiff was affirmed by this court in 1913- and paid in full in the same year. The action at bar was brought in 1915. Regardless, therefore, of whether it be held that the cause of action accrued at the time of the affirmance of that judgment or upon its payment by plаintiff:, the instant case was timely brought. The plea of the bar of the statute is therefore without merit.
Other contentions have not been preserved in a manner to entitle them to a review.
Aside from what we regard as clear and compelling precedents cited in support of the conclusions reached herein, the righteousness of plaintiff’s cause appeals strongly to our sense of justice. Plaintiff has twice paid for these ties—each time in good faith—once under its contract and again in satisfaction of a judicial determination of its liability. To hold now that it cannot recover from a paid surety of a principal whose default rendered imperative the last payment, would, in our opinion, work a grievous wrong.
The judgment of the trial court should, therefore, be affirmed.
Dissenting Opinion
(dissenting). This suit was instituted in the Circuit Court of the City of St.. Louis, returnable to the February term, 1915, on an indemnity bond executed, April 17,1899, by Graham & Miller as principals and by appellant as surety, to respondent as obligee, called therein Railway Company, in the penal sum of $10,000. Said bond recites:
“The obligation of this bond is such that,
*115 Whereas, The said Graham & Miller are general railroad tie contractors, engaged in the business of furnishing to railway companies erossties, switch ties and lumber, in the State of Missouri; and,
“Whereas, The said Graham So Miller for several years past have been selling ties and lumber to the Railway Company and desire to furnish ties and lumber to said Railway Company during the year 1899, and,
“Whereas, The Railway Company is willing to continue purchasing of said Graham and Miller ties and lumber, from time to time as it may want them, provided the same conform to specifications and requirements of the Railway Company and ■ are accepted by its fully authorized agent after inspection; and, provided further, that the said Graham, So Miller will hold it, the Railway Company, harmless by reason of any and all claims which m,ay be made against it by laborers, materialmen and others, to and on account of any ties and lumber furnished by them to the Railway Company, between January 1st, 1898, and January 1, 1900.
“Now, Therefore, If the said Graham So Miller shall well and truly protect and indemnify the Railway Company against all loss and damage, costs and attorney fees, by reason of any claims which may be made against the Railway Company on account of any ties and lumber which have been or may be furnished by them and accepted by the Railway Company, as aforesaid, by any person or persons whatsoever, and warrant and defend their title to all such ties and lumber, then this obligation to be void, otherwise to be and remain in full force and effect.”
The plaintiff, at and prior to that .time, owned and operated a line of railroad running through the states of Missouri, Kansas and Oklahoma. The amended petition, for breaches of said bond, charges in substance that, pursuant to said arrangement, between April 28 and August 1,1899', Graham
So
Miller furnished and delivered to plaintiff 49,320 ties of the value of $21,207.10; that after plaintiff had paid said sum to Graham
So
Miller,
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the Bagnell Timber Company, on or about December 23, 1899, commenced an action in tbe Circuit Court of Pettis County against plaintiff and Graham
&
Miller, “wherein and whereby it was claimed by said plaintiff in said suit that there was a balance of $5,422.50 due to it from said defendant in said suit on account of certain of the ties so as aforesaid furnished by the said Graham & Miller to plaintiff and paid for by plaintiff as hereinbe-fore stated, and for which it prayed judgment and that the judgment should be declared a hen upon the lines of the said Missouri, Kansas & Texas Railway Company within the State of Missouri.” That plaintiff gave notice of said suit to defendant surety company, and that plaintiff had paid Graham
&
Miller in full for said ties, and that it would look to defendant to protect it from further payments and expenses in connection with said matter, but defendant refused to defend-said suit and requested plaintiff to fight said suit to a finish, which plaintiff did at great cost and expense ; that the Bagnell Timber Company dismissed said action as to Graham <& Miller; that there were three trials and judgments rendered in said action which were appealed to this court; that on the third trial the Bagnell Timber Company, on December 7, 1912, reсovered judgment against plaintiff for the sum of $9,654.12, and costs taxed at $436.50, which was affirmed on appeal May 31,1913. [See Bagnell Timber Company v. Missouri, Kansas & Texas Railway Company,
The appellant demurred to said petition on the ground that it did not state facts sufficient to constitute a cause of action against defendant, in that, “It appears from the averments of said amended petition that the final judgment alleged to have been obtained by said Bagnell Timber Company, the plaintiff, was for and on account of ties by said Bagnell Timber Company to plaintiff, and not for ties sold or furnished by said Graham & *117 Miller to plaintiff, and that the non-payment of said judgment by said Graham & Miller or by this defendant did not constitute a breach of the bond in suit, nor entitle plaintiff to recover against defendant in this action. ’ ’ The demurrer was overruled.
The defendant, by its answer, admitted that the plaintiff and defendants are corporations; admitted the execution of the bond sued on; that the Bagnell Timber Company, a corporation, on or about December 23, 1899, commenced an action in the Circuit Court of Pettis County against said J. T. Miller and L. G. Graham, co-partners, and plaintiff herein, as stated in the petition; that three trials were had in said cause, and that the judgment rendered on the third trial was affirmed on appeal by the Supreme Court for the sum claimed by the defendant, and that plaintiff on July 1, 1913, paid said judgment, interest and costs, but defendant denies generally all and singular the other allegations in said petition contained.
The cause was tried to the court at the February term, 1919, and taken under advisement. Thereafter, at the April term, on April 7, 1919, the court rendered its finding and judgment in favor of plaintiff and against the defendant, assessing the plaintiff’s damages for the breach of said bond in the sum of $10,000, from which an appeal was duly taken.
The pleadings, evidence, instructions to the jury and the judgment in the Bagnell Timber Company case were read in evidence. The amended petition in that case charges, in substance, that on or about April 20,1899, the Baanell Timber Company entered into an agreement ■with the said Railway Company and Graham & Miller,whereby it undertook and agreed to deliver and furnish to defendants $50,000 oak railroad ties to be delivered at St. Louis, Sedalia, and Wagoner, I. T., as defendants might direct, and defendants undertook and agreed to pay plaintiff forty-three cents per tie for first class and thirty-three cents per tie for culls; that there is a balance due said Bagnell Timber Company from the defendants in said cause of the sum of $5,422.50 for ties *118 delivered by plaintiff to the defendant railway company on the tracks of said railway company at Wagoner, I. T., in accordance with the terms of said agreement, between, the months of April and August, 1899, both inclusive, as appears by, an itemized account thereto attached; that said balance.became due on August 1,1899, and within ninety days thereafter, to-wit, on October 27, 1899, the plaintiff, in order to establish its lien fоr said sum upon the railway company as aforesaid, did file said account, etc.. (On the first appeal it was held the Bagnell Timber Company was not entitled to a lien on that part of the railroad which lies in this State, the material having been used in another State).
The amended answer of the Railway Company admitted that the Bagnell Timber Company delivered upon its line of railroad at Wagoner 49,320 ties, but denied that it, either severally or jointly with Graham & Miller, purchased or agreed to purchase any ties from said Bag-nell Timber Company, or undertook or agreed to pay said plaintiff therefor. It admitted that it had failed and refused to pay plaintiff said sum of $5,422.50 on account of said ties, and denied that there is any sum due by this defendant to plaintiff for said ties so delivered on its tracks at Wagoner, and denies that plaintiff delivered any ties to defendant under an agreement between plaintiff and defendant. It averred that Graham & Miller, in the year 1899, were tie contractors for defendant and bought tiеs from various persons in order to'deliver them to defendant Railway Company under their contract and arrangement with plaintiff, the details of which were unknown to defendant. Other portions of the answer are deemed irrelevant to the issue and are omitted.
The evidence offered by the plaintiff on the trial of the cause, tended to prove that the ties were sold by the Bagnell Timber Company to Graham & Miller, while the evidence offered by the defendant surety company tended to prove that the ties were sold by the Bagnell Timber Company to the Railway Company and Graham <& Miller.
*119 One of the instructions given for tlie Bagnell Timber Company reads: “That conrt instructs the jury that it is admitted by the parties to this case that plaintiff delivered to the defendant Railway Company the number of ties stated in the petition, and it is admitted that the unpaid balance due to the plaintiff for such ties, on October 26, 1899, was the sum of $5,406.65; and the court instructs the jury that if they believe from all the facts and circumstances in evidence that the said railroad ties were delivered under a contract of sale made by plaintiff with the said Railway Company and Graham & Miller, or with the said Railway Company alone, and that the said unpaid balance is yet due to the plaintiff, then the verdict should be for the plaintiff and its damages should be assessed at an amount equal to said sum of $5,406.65⅛ with interest thereon at the annual rate of six per cent,.from said October 26, 1899.”
The court instructed the jury for the defendant, as follows: “If you find from the evidence that the contract for the sale of the ties, the purchase price of which is sought to be recovered in this cause, was made between the plaintiff and the co-partnership of Graham & Miller, and was a separate and solo contract with them alone, and between the plaintiff and said co-partnership alone, your verdict and finding must be for the defendant. ’ ’
At the close of the testimony, the court refused a demurrer offered to the evidence by the defendant. The court gavе declarations of law for the plaintiff, in substance as follows:
2. Plaintiff is not estopped to prosecute this action by the adverse judgment in the Circuit Court of Pettis County.
3. That if the court find from the evidence that plaintiff purchased ties from Graham & Miller and said Graham <& Miller caused said ties to be delivered by the Bag-nell Timber Company to plaintiff at Wagoner, I. T., and plaintiff paid Graham & Miller therefor according to their order and direction, that thereafter the Bagnell *120 Timber Company sued and recovered judgment against plaintiff in the Pettis County Circuit Court for the balance alleged to be due it from plaintiff and G-raham <& Miller on account of the same ties, then the finding and judgment will be for plaintiff. . '
The court g*ave a declaration for the defendant in substance that if the court found from the evidence that the ties mentioned in the petition were not sold to plaintiff by Graham & Miller but were sold to plaintiff alone, or to plaintiff and • Graham & Miller, then the judgment should be for the defendant.
It is thus seen that it was judicially determined on the trial in the Circuit Court of Pettis County that the Missouri, Kansas & Texas Railway Company did not buy the ties from Graham <& Millеr, but that the (Bagnell Timber Company sold and delivered them to the Railway Company and Graham & Miller, and that it owed the Timber Company the balance found to be due it by said judgment.
The learned trial court overruled the defendant's demurrer to the evidence, and by its declaration of law given for the plaintiff ruled that the plaintiff was not estopped by said judgment from recovering in this action on the ground that the matters in issue were adjudicated and determined adversely to plaintiff in the Bagnell Timber Company suit, on the theory that the Railway Company and the Surety Company were not adversary parties.
It is well settled that .a judgment against two or mor defendants, if there are no issues between them, does not bind them as against each other. [E. E. Southern Iron Co v. Woodrull Realty Co., 175 Mo. App. l. c. 255; Charles v. White,
In Herman on Estoppel, sec. 138, cited by respondent, in speaking of a judgment against adversary parties, it is said: “Thus a judgment against A and his sureties is no bar in an action between one surety and his co-sureties to recover of each his proportionate share of a judgment of amercement that liad been collected of him; while it establishes the demand, it does not establish the liability of the sureties between themselves; that point is not before the court in the action wherein the origifial judgment was rendered.”
Again, in McMahan v. Geiger,
The rule invoked, however, has no application to the case in hand. The plaintiff notified the Surety Company, an indemnitor, to defend the suit in the Pettis County Circuit Court so that it would be concluded by the judg
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ment that might be rendered therein. '‘Where one is bound to protect another from a liability, he is bound by the result of the litigation to which such other is a party, provided he had notice -of the litigation and opportunity to control and manage it.” [Strong v. Phoenix Ins. Co.,
Was the failure of the Surety Company to pay the judgment in favor of the Bagnell Timber Company a breach of the conditions of the bond? To justify a recovery on the bond it must be shown that the damage or injury alleged is such as fairly falls within the terms of the contract. [22 Cyc. 86, par. 4.]
In Utterson v. Elmore,
The rule is stated in 22 Cyc. 84 B: "In construing contracts of indemnity, the ordinary rules of construction employed in the interpretation of contracts generally are applicable. Indemnity contracts, like other contracts, are to be so expounded as to effectuate the intention. of the parties. . . . Where a doubt arises *123 from any ambiguity or obscurity in the language, the court will incline against the party whose words are the matter to be construed. ’ ’
Heman Constr. Co. v. St. Louis,
In Moore v. Title Guaranty & Trust Co.,
In American Bonding Company v. Pueblo Inv. Co., 150 Fed. l. c. 24, Sanborn, J., held that a surety is never liable beyond the strict terms of his contract. His obligation may not be extended by construction or by implication.
By referring to the conditions of the bond, it is seen that the liability against which the Surety Company undertook to protect and indemnify the Railway Company was solely in connection with ties furnished by Graham & Miller to the Railway Company. Has the plaintiff suffered loss or damage on account of any ties or lumber furnished it by Graham & Miller? It is averred in the amended petition for breaches of the bond, that between April 28 and August 1, 1899, Graham & Millér furnished and delivered to the Railway Company 49,320 ties; that after plaintiff paid them in full therefor, *124 the Bagnell Timber Company sued plaintiff and Graham & Miller, claiming there was $5,422.50' dne to it from the defendants in that action on account of certain of the ties so furnished by the said Graham & Miller to 'plaintiff and paid for by plaintiff and for which it prayed judgment.
The sole issue on the trial of the Bagnell Timber Company case, as appears from the pleadings and the instructions given by the court, was whether the Bagnell Timber Company sold the ties to the Railway Company and Graham <& Miller, as was contended by the plaintiff therein, or whether Graham & Miller sold them to the Railway Company, as was contended by the Railway Company. That was the sole issue also on* the trial of this cause, as appears by the pleadings and declarations of law given by the court. That was the theory on which the case was tried in the court below. It must be tried here оn this appeal on the same theory. It was not tried on the theory that Graham & Miller had bought the ties from the Bagnell Timber Company as plaintiff’s agents and that plaintiff became bound thereby to pay for them, or that, after receiving the money from plaintiff’ to pay for them, they had embezzled the money or had defaulted and had thus breached the bond.
It conclusively appears by the judgment in the Pettis County Circuit Court that the ties were sold by the Bagnell Timber Company to the Railway Company and Graham & Miller, and that in paying the judgment the Railway Company paid its own debt. That finding* is fatal to a recovery in this action against the indemnitor. [22 Cyc. 107.] It follows that there was an entire failure of proof on the issues presented'by the pleadings. The failure of the Surety Company to pay that judgment is not a breach of any condition of the bond, express or implied, unless its obligations be extended by construction or by implication. This we cannot do without doing violence to the terms of the contract of suretyship.
It follows that, in my opinion, the learned trial court erred in overruling the evidence. I dissent from the majority opinion.