79 F. 420 | 8th Cir. | 1897
after slating the case as above, delivered the opinion of the court.
1. The certified copy of 1lie bond sued upon was properly admitted in evidence. Sand. & H. Dig. Ark. § 2881.
2. The execution of the bond by the surety, the plaintiff in error, was not disputed; but it was claimed that the bond was not executed by the principal, the United Stales Mutual Accident Association, and was therefore incomplete and not binding upon the surely. The claim of the plaintiff in error is that it could only have been executed by the principal by signing its corporate name at the foot of the bond. This is not true. It makes no difference in what form an obligor signs a bond, provided it appears that the purpose was to bind himself. Hinsaman v. Hinsaman, 7 Jones (N. C.) 510. Here the name of the principal, as well as that of the surety, was written in full in the body of the bond, and the seal of the principal was impressed opposite the attestation clause, between the obligatory part and the condition. At the close of the whole instrument it was signed: “Charles B. Beet, President. James R. Pitcher, Secretary.” Right under these the corporate name of the plaintiff in error was signed: “By E. B. Leigh, President. L. W. Coy, Secretary,”—and the seal of the plaintiff in error is impressed opposite its signature. Each of these methods of execution is in customary use, and each is as binding as the other. That the principal followed in this case its customary method of executing- sealed instruments is shown by comparison with its policy, which was executed in the same manner. It was not, like the instances cited by the plaintiff in error, a case where one signs a bond as surety, which is never signed by other
3. The exemplification of tbe record of tbe judgment in favor of Minnie Eobinson against the United States Mutual Accident Association was sufficient and properly certified,
4. Although the bond upon which the action was brought was, by its terms, made to tbe state of Arkansas, it was required and made for the use and benefit of the beneficiaries in tbe policies of insurance issued in that state, and any such beneficiary could maintain an action for breach of the condition of the bond. Such right of action in the beneficiary was expressly given by the act of March 26, 1887. Sand. & H. Dig. § 4133. Some of the provisions of this, act were changed by the later acts of March 6,1891, and March 24, 1893. Sand. & H. Dig. § 4124. But the provision above referred to in the earlier act was left untouched, and still remains.
5. The testimony of the witness Sanders to the effect that Charles B. Peet was the president and James E. Pitcher the secretary of the United States Mutual Accident Association, based upon their admissions of such facts in written correspcfndence, Avas incompetent; and its admission, against the objections of the plaintiff in error, Avas erroneous. The authority of an agent cannot be shown by proof of his admissions, and, besides, no foundation Was laid to admit oral evidence of the contents of the writings, had the writings been competent. But the plaintiff in error was not prejudiced by the admission of this testimony, as the official character of Peet and Pitcher was abundantly proven by the policy of insurance, and by tbe recognition of their official character by tbe plaintiff in error in the execution with them of the bond sued upon.
6. The plaintiff below was not called upon to again establish on this trial her right to recover against the insurance company upon the policy. That right had been established by her judgment in her action against the insurance company; and such judgment against the principal upon the bond, not shoAAm to have been collusive, was competent and sufficient evidence against the surety. In City of Lowell v. Parker, 10 Metc. (Mass.) 309, Chief Justice Shaw says:
“But it is objected that this judgment Avas not admissible, because the sureties Avere uot notified, and therefore it was res inter alios. But we think this objection cannot be supported, under the circumstances of this ease. When one is responsible, by force of law or by contract, for the faithful performance of the duty of another, a judgment against that other for a failure in the performance of such duty, if not collusive, is prima facie evidence in a suit against the party so responsible for that other. If it can he made to appear that such judgment was obtained by fraud or collusion, it will be Avholly set aside; but otherwise it is prima facie evidence, to stand until impeached or controlled, in whole or in part, by countervailing xrroof.”
This exposition of the latv has been adopted without dissent by courts and text Avriters, and covers tbis case. Here there was no evidence tending to show collusion, or to in any way impeach such.
7. The court properly instructed the jury that under the evidence in the case the plaintiff below was entitled to recover from the defendant below the amount of (he judgment aforesaid, which she had recovered against the United States Mutual Accident Association, including the costs and interest upon the same. This was the propia- measure of the actual damages sustained by her because of the breach of the condition of said bond. There was no material error in the trial of the cause, and the judgment is affirmed.
