59 P. 190 | Or. | 1899
delivered the opinion of the court.
In 1892 the plaintiff and defendant became sureties on the official bond of V. L. Arrington, Treasurer of Douglas County. Arrington made default in the sum of $22,990, which they were compelled to pay in equal parts. Thereafter the plaintiff brought this action to recover $4,003.55, alleging that at the time of the execution of the bond it was agreed and stipulated between him and the defendant that their liability, as between themselves, should not be joint or equal, but that the plaintiff should be liable for one-third, and defendant for two-thirds, of any loss thereon. This alleged contract was denied by the defendant, and, upon issue joined, the cause was tried before a jury, resulting in a verdict in favor of plaintiff for the amount prayed for; and from the judgment which followed the defendant appeals, assigning as error the following instruction to the jury : “The complaint in this case alleges, in substance, that an agreement was entered into between the plaintiff and the defendant, at the time of the execution of the bond of V. L. Arrington as Treasurer of Douglas County, that there was an agreement between plaintiff and defendant, as sureties to said bond, that the plaintiff should be liable for one-third part of any default Arrington might make as county treasurer, and that defendant should be liable for two-thirds of any such default. I charge you that such agreement may be established by proof of circumstances from which shch agreement may be inferred, and that it is not necessary, to entitle plaintiff to recover, to prove that such agreement was made in express words, or by the use of any formal expression or statement of the parties. Therefore, if you find from the evidence before you that at the time this bond was executed the plaintiff and defendant each understood that they were assuming liabilities on it in the ratio of one-
There was no evidence of an express contract by defendant to indemnify plaintiff against liability as a surety on Arrington’s bond. It must be implied from the conduct of the parties and the circumstances of the case, if it existed at all. The instruction complained of is the only one given as to what would be sufficient proof of an implied contract. To understand its importance and the particular objection made to it, a brief reference is necessary to some of the facts, a statement of which will be found in the former opinion in this case : 31 Or. 269 (44 Pac. 382). Arrington was required to give a bond for $30,000, and the evidence tended to show that he represented to the plaintiff that it was to be signed by three sureties, and, with that understanding, plaintiff consented to become one of them. When the time came for executing the bond, the plaintiff, discovering that defendant and himself were tire only sureties present, objected to becoming a surety for more than one-third of the amount of the bond, whereupon Arrington offered to get the third surety, when the defendant said that it was not necessary, for he would “take the rest of the bond.” It was thereupon executed, with the figures “$10,000” written immediately in front of plaintiff’s signature; and he justified in that sum, and the defendant in the sum of $20,000. The point of the objection is that in view of this testimony the jury could very properly have found that the plaintiff and defendant each understood or supposed at the time they executed the bond that they were assuming liability thereon
When an agreement consists of words,written or spoken,
The fact, if it is a fact, that at the time of the execution of the bond the parties both mistakenly understood that they were liable in the proportion of their respective justifications, would not be proof, of itself, of the contract alleged in the complaint. But by the instruction complained of the court told the jury that it would be sufficient proof of an implied contract of agreement on the part of the defendant to indemnify the plaintiff if the parties “each understood that they were assuming liabilities on it in the ratio of one-third by the plaintiff and two-thirds by the defendant, and that they executed the same with that understanding, and each knew that such was the understanding of the other,” without indicating whether such understanding was confined to their liability to the county, or as between themselves. The court
It is also claimed on behalf of the defendant that the court below erred in overruling his motion for judgment notwithstanding the general verdict. This motion was based upon the answers given by the jury to two special interrogatories, but there is such a want of clearness in their language that the case ought not to be finally disposed of on the jury’s answers thereto, and therefore it is reversed and remanded for a new trial. Reversed.