70 Ark. 512 | Ark. | 1902
(after stating the facts.) This is an action on a bond of indemnity given by the defendants, Abe Stiewel and Maxwell Coffin, to the plaintiff, the American Surety Company, in order to induce it to give another bond to the New York Life Insurance Company. The giving of this bond by the surety coinpany was the condition on which the insurance company had agreed to pay to Mrs. Shields, a sister of Abe Stiewel, the amount due on a certain insurance policy, about which there was some dispute by reason of the fact that another party had set up a claim thereto. The surety company gave the bond, and the insurance company paid the money to Mrs. Shields, but later, another person having recovered judgment against the insurance company on the policy, the surety company had to make good the loss, and now seeks to recover the amount from the' defendants as obligors on the bond of indemnity given to it.
The defense set up by the defendants to this action is that they were induced to sign the bond to plaintiff by reason of representations that Ed S. Stiewel had signed or would sign the bond executed to the life insurance company. But the jury, to whom the case was submitted, found that no such representation was made, either by the plaintiff or its agent. This finding is supported by the evidence, and on this appeal must be taken as true. Mrs. Shields, the other party, was not present, and it is not shown that her agent, Ed Stiewel, made any such representation. He and defendant, Abe Stiewel, were brothers of Mrs. Shields, and were both, no doubt, interested in the matter of procuring this insurance for her. He is in the employ of his brother, Abe Stiewel, and it is not reasonable to believe that he deceived the defendants in any way, but, if he did, he is responsible for his acts, and the defendants have their right of action against him for any damages suffered by them in consequence of his representations. But there is no reason why plaintiff should suffer therefor, as there is nothing in the evidence to show that it had any notice of any representations made by Stiewel.
But the evidence malíes it quite plain that neither the plaintiff, Ed Stiewel, nor anyone else misled the defendants by any such representation. The only plausible ground for the defense .set up is the recital found in the bond given by the defendants. This bond does recite that the surety company became surety for Ed S. Stiewel and Fannie Shields on a certain indemnity bond, a copy of which, the bond signed by the defendants further recites, is thereunto annexed and made a part thereof. As the bond of defendants refers to the former bond, and expressly recites that a ■copy of it is annexed thereto and made a part thereof, the two instruments must, of course, be read together to get at their meaning. The two instruments together constitute the contract, and, when the entire contract is read in the light of the attendant circumstances, it is plain that this reference to Ed Stiewel in the bond of the defendants was a mere clerical error, caused probably by the fact that he signed the bond to the insurance company as the attorney in fact of Mrs. Shields. The names of both Ed Stiewel and Mrs. Shields being attached to the bond on which the surety company became surety, the draftsman,- in drawing the bond to indemnify the insurance company which defendants signed, by mistake recited that the surety company became surety for both Ed Stiewel and Mrs. Shields, when, in fact, Mrs. Shields was the only principal on the bond. But whether the mistake was made in that or in some other way is not material, for we think it was a mistake which could have misled no one who read both bonds. Now, as before stated, the bond of the defendants recites that the other bond is thereunto annexed and made a part thereof, and, if the defendants failed to read what was in those bonds before signing, the fault was theirs, and not that of plaintiff. Plaintiff had the right to suppose that they understood their contract, and to act on that supposition. Wagner v. National Life Insurance Company, 33 C. C. A. 121.
This is not a case where one has signed a bond as surety on condition that it shall not be delivered unless another party signs. To deliver the instrument under such circumstances before the other party signs is an act of bad faith which invalidates the bond, if the other party has notice of the premature delivery. But there was no premature delivery of the bond in this case. The defendants themselves made the delivery, and, in our opinion, no valid reason is shown why they should not be bound by their contract. We think that the judgment of the circuit court is right, and it is therefore affirmed.
