*1 438 R. Thews Trustee, et al. v. American Bank,
Union State (2d) 1038. W. Appellant. S. February 3, One, 1930. Division *2 La-ngworthy, Spencer appellant. Terrell for & Pugh
Trusty respondents. <& *3 given LINDSAY, C. This is a a Associated suit Mill Company, & Elevator called as hereafter Surety Company as Union principal, surety, and the American in- trustee, State Bank of as for the of the Beverly, Kansas, benefit joined respondents here. bond was plaintiffs, dividuals given performance Company of secure the Elevator Company,, a into terms of written contract entered the Elevator in- trustee,, Bank on named and Union State behalf building grain elevator Kansas. dividuals, Beverly, for the of a is a corporation, is a but common-law The Elevator building Under engaged in business of elevators. trust. It was required sum of an plan construction pursued, it procured through individuals was elevator elevator, locality proposed who, for residing in the Company cer- from the Elevator subscriptions, of their received representa- In bar, in the trust the case at tificates of stock estate. had prior 15, 1920, to November tives of the procured herein subscriptions, the individuals solicited and $6,900. other, joined one in the total amount of plaintiffs, Union payments upon were made to these might behalf of bank contract on end that Bank, to the State only then been Although sum of had the subscribers. raised, should be sum subscribed, plan was ele- for the construction the Elevator ready for completed was according to be plan, to the vator, which, way preface, may be said By maturing by July 1, 1923. crops question into before amount was entered here only $6,900 subscribed, had been when subscribed, was the bond signed sued on was delivered at the time the contract was by the bank and Company. may further be It at this time that the full Ele- never Company. vator company, brought, That before this suit was had insolvent, become and its affairs were in the of a receiver. No hands work on the construction the elevator ever done. This suit is recovery for the of money paid to the Elevator bank, which received as trustee subscribers, for the and for A had issued certificates of stock. subscription, arrangement $300 payment, was canceled an between subscriber Company. and the is The suit recovery plain- $6,600, of the sum of and accrued interest. The judgment $8,- tiff sum, had for the principal interest, total 218.10, appealed. and defendant
The trial jury, without most the evidence petition plaintiff taken under the first amended and the amended months, answer defendant. After an interval of several plaintiff further evidence filed a taken, second amended petition, and amended answer. These defendant filed second pleadings long, questions presented appeal are but view of they they need extensively, set forth will be referred requires questions as occasion in the discussion of raised. assignments error, makes all defendant but nineteen “points authorities,” contentions made under his brief, discussion in the are- claim that directed to the the court should have sustained demurrer to the This defendant’s evidence. claim that the demurrer the evidence should have been sustained put upon grounds: (1) the several on was bond sued That *4 by shown been the have written on the contract executed Bank;'(2) 16, 1920, Elevator and the that on December bank the and the Elevator entered into new modifying contract, by which, terms of reason of the the 'the written Surety Company bond; (3) was on its never released bond operative, acting because, bank, subscribers, became for the as the obligation never its under the fulfilled Elevator specified, is, terms of the contract and that never the per- $8,000; Surety Company that the did not waive the failure Company. by bank Elevator formance the of its contract with the Surety Company primary step the The is to determine whether by Company performance insured the the contract the pleaded so, next, petition, in determine whether it is terms and the conditions of liable under the of that contract in bond, in the facts shown evidence. view of testimony plaintiff November, shows that 1920, for presented by Mr. vice-president, its Company, McQueen, signed already for writing proposed bank the contract was tendered bond Company by president; but no its thus contract as proposed time. The at that provision: following presented, contained the written deposit placed on per shall be sixty “Of amount cent subscribed Beverly, in the name of the Kansas, Union State Bank of obligations only payment party and shall be used second site, material, in- obtaining for bills for incurred obligations incurred surance, plans specifications, like equipment thereof until the construction of such elevator payable ready bills party approve use. shall for The second they paid, party’s such fund are and second checks from before approval only paid by upon the fund shall the said bank such remaining forty per party. bills cent of such second subscription delivered to the from such shall be funds derived party.” second provision Schroeder, objected
This Mr. cashier of the ground attornejr subscribers, no bank, required money paid over, and it before the was in- out, provision quoted changed, should be sisted stricken provision requiring and another substituted therefor a bond given money Company. before the should be testimony, provision As the form the so we understand to be prepared attorney substituted, by the the subscribers. About day December, 1920, vice-president the 16th of the Elevator bringing Company returned, proposed the bond being tendered, on, sued the contract the same before instrument except objected quoted clause above been stricken by drawing clause, ink over the out lines in words in that and appeared clause in typewriting. drawn, substituted therein As thus through signed the contract was for the subscribers accepted cashier, written, except and the bond was con- obtained at time sent changed provide completion crops the elevator for
so for a “maturing “maturity July in the season” instead after petition 1, 1921.” contract as declared in the the one between entered into and the and for omitting performance given, signatures, of which bond was forth, appearing is now set clause substituted therein for the eliminated, being clause shown italics:
“Agreement. *5 is “Whereas, County, it desired the citizens of Lincoln Kan- residing vicinity Beverly, Kansas, and in the of sas, Mill grain & Associated a modern elevator sufficiently large a the various number of bins to care for with small grades grain grown territory tributary Beverly, kinds of Beverly, capacity bushels, at Kansas, of a thousand be erected ten Kansas, right-of-way, on or near the railroad paid by the
eight ($8,000) dollars subscribed and thousand be Beverly, tributary residing territory citizens county of such Kansas, $100: value company, par for shares agreed therefore, “Now is the Union State and between Bank, of such Beverly, Kansas, as the subscribers for trustee for shares, names and subscribers who attach their hereto become parties subscribing shares, parties, and hereto for such as first Associated Mill & Company, second follows: party, $8,000 paid by subscribers
“Whenever the sum of shall have been for such Beverly, Kansas, shares into the Union State Bank of party proceed diligence acquire second shall with reasonable a completion site such prosecute elevator and will commence may Beverly, Kansas, construction thereof so that same completed grain crops maturing be in time to receive the after July 1, 1921, strikes, lockouts, Providence, acts of conditions of war and of excepted. the elements any $8,000 paid be shall over to said second “Before party it shall reliable some furnish the conditions said contract ivill be carried out and said elevator (and built according deposit to contract said bond with Trustee,
said Bank as shall be then amount full party). to said second surety The said substance to contain in the terms this contract. party give “Second will they bond in the sum of will comply with terms this contract and such elevator erect ’ good and workmanlike limited, manner within the time such bond to run to the Union Bank of Beverly, State Trustee Kansas, for benefit of all subscribers such shares under this contract and shall deposited such with bank.
“The party every begin second use effort construction practicable such elevator at complete the earliest date and to within same time limited. “Whenever of such under this shall Union into the State Bank Beverly, Kansas, parties.
making paym'ents such shall then be entitled to have de- issued and livered to them certificates for shares the Associated Mill & they for have paid. subscribed and All sums received over and above shall be paid party. the second “In parties witness whereof signed have hereunto
. their names day 15th this of November, 1920.” *6 follows: as signatures, omitting
‘‘Bond. . &Mill we, Associated That Presents: These All Men “Know American Principal, and Estate, Trust Company, a Elevator New State of of corporation York, a New Company of State Union unto firmly bound Surety, held are York, as just Oi sum full and Trustee, Kansas, Beverly, Bank of of ($8,000), Dollars Eight Thousand and no/100 our ourselves, hereby bind do made, we truly to be well and which, pres- these firmly by severally, jointly assigns, successors and ents. day December,
“Dated this 2nd A. D. 1920. of Obligation whereas, “The Is Such, Condition Above day on the 15th said Mill & November, 1920, of .Associated Elevator entered into a with the Union State Beverly, Bank of Kansas, as certain subscribers Trustee, for to the Mill Company, stock of the Associated & it was Elevator wherein agreed for said Mill Associated Elevator & build a grain grades modern elevator suitable for the various kinds and of grain grown territory tributary Beverly, Kansas, said elevator capacity be of a (10,000) at ten least thousand bushels and to be erected Beverly, Kansas., right-of-way, or near the railroad agreement said on the & Mill Associated Com- pany being predicated upon and conditioned subscription payment of, by territory tributary citizens Beverly, Kan- sas, Eight the sum ($8,000), Thousand Dollars for which said subscribers are to receive certificates for shares of beneficial in- terest in the Mill & Associated to the amount Eight Thousand Dollars ($8,000), each share of such beneficial in being par terest ($100) ; value of One Hundred Dollars and, “Whereas, the subscribers aforesaid, guaranteed desire to be the elevator as hereinbefore described would be built ac- agreement cordance with the to, hereinbefore referred so would be completed constructed and grain crops time receive maturing in 1921, season strikes, lockouts, Providence, acts of excepted. conditions war and of the elements If “Now, Therefore, pay the said subscribers shall to the said Mill Associated & Eight said Thou- sand Dollars and if ($8,000), the said Mill Associated & Company shall said construct elevator in accordance with the terms and conditions of said and in event the Elevator Com- pany shall agreed construct elevator re- shall turn to the said Trustee for the benefit the said subscribers the amount subscribed them, exceeding the sum Eight Thou- by said sub- ($8,000), distribution surrender sand Dollars beneficial in Associated respective certificates of interest scribers said subscribers Mill & Elevator held them heretofore been proportion have such as the void; obligation shall be null and Trustee, this paid in to said then and effect.” full force otherwise to be remain in *7 urged that is defendant: It Coming contention of now the first and 15, 1920, November upon as dated the contract was declared 1920; 16, December until dated, so but was not executed was that it 1920, refers 2, and December bond is dated ^at 15, November as one entered into to the contract paragraph erasure of 1920; showed that contract pro- different originally of a written, and the interlineation Four as executed the defendant vision, shown that and it was not that out and the paragraph stricken subsequent was time the bond was not shown what that paragraph interlined. It true other particular nor the interlineation, erasure and the person made the that shown above, indicated it was when done. As date that was City, by the writing was to Kansas paper first tendered taken objection response to Company in vice-president of the Elevator replaced be acceptable, and should paragraph Four ivas that given in ac- was inserted, that the bond to be and one to pay- provision precedent condition to the the new a cordance with Company. was When bond money ment representa- Surety Company, given to the it was executed evidently given him be de- Company, of the Elevator and tive signing In the bank, upon first contract. livered to the alleged November, or the 15th of petition it is that on about amended contract, Company a bank entered into 1920, originally signed prepared said “which had been contract 1920.” al- 15, on or about November also Mill It Company agreed leged petition furnish in the that the surety company guaranteeing condi- a reliable that the bond of out, would be carried “and the terms of said that tions in surety bond should contain substance the terms may just point language at this be observed that the contract.” It language paragraph in quoted is used the fourth contract petition place one in erased. The amended also substituted alleged day December, on the 16th that 1920, bond of the defendant did furnish the copy petition bond was attached to the “Exhibit petition copy
B.” The sets forth the bond as attached con- taining paragraph Four. the substituted The defendant its first upon which trial begun, answer September, amended petition “admits that the contract set 1923, out the amended . . . and further 15, 1920, dated November was entered into” day December, admits execution on the the bond second put 1920. This "When the cause taken answer was in evidence. up its hearing July, filed second 1925, an additional defendant amended In first had the admission answer. that answer defendant just to, above but contained its first amended answer referred later lieu struck out the admission interlined thereof 1920, 15, statement that a contract dated November executed on date, about between the Elevator 2, 1920, defendant based executed its on December upon it, 15, presented entered on November then into 1920, between the Elevator “and not '” significant any the basis other contract. It is defend- that the pleading, ant, twice out in admitted contract set petition 15, into. 1920, amended dated November was entered It appears further record re- copy ceived a of the contract as it was written given; response request copy to a that such replied copy produced, defendant’s contract had been *8 original The agreement mislaid. written in was admitted evidence objection without on the There no of defendant. was claim made interlineation, then that the alteration erasure and had been made after the defendant executed bond. the The be- bond came delivery 16, effective on its necessarily on December 1920. The trial court upon found that the was written the con- tract as shown the instrument received in evidence. Such a find- ing objection here, was warranted the and founded the dates recited bond, contract and and on the erasure and in- terlineation, appearing writing, is overruled. questions
The (a) next raised the defendant, whether operative became delivery, (b) and whether, after de- livery bond, parties, Company Elevator bank, and
enfereJ into a changing new the terms of the contract, so, and if whether waived failure, defendant if any, of performance by require the bank, a considera-' concerning tion of the evidence what was at delivery done and after of testimony the bond. The delivery shows that on the McQueen, Mr. vice-president of the asked that the amount subscribed and the bank, $6,900, be then turned over. The cashier said he demurred, this, hesitated to do be- cause the full McQueen amount of had not been subscribed. stated pay that the bank would over the $6,900, he would see that balance obtained, were also building begun of the elevator would as soon as the weather con- permitted. ditions bank cashier Mr. consulted McFarland, at- torney subscribers, for the concerning advisability malting payment, thought right this who pay- it would be all make ment, agreed if the Company to obtain balance of the subscriptions. McQueen The bank turned over to a certificate of deposit $6,272, bearing per maturing four cent interest and six proceeds months. This of $6,400 paid ivas the to the bank subscribers, $128, per less a commission two cent which the agreed should be retained the bank for handling matter. The bank had the notes which .the taken gave agents payment subscribers the Elevator given shares them. At the time, same there was turned McQueen Liberty $500, over to which had bonds the amount of subscriptions. been delivered to bank There is testimony showing no when informed payment. time, this of the bank cashier testified at selling par Liberty were not owing financial at conditions, bonds par. How- deposit salable also, certificate receipt- amount, the full Company gave for' ever, the Elevator pay- Liberty bonds as apparently the certificate and accepted Company cancelled the after ment. It this dissatisfied, who subscription of the stockholders $300 one subscrip- paid on her the amount returned to that stockholder steps secure additional took no tion. building of the elevator. steps no toward the subscriptions, took attorney, wrote to 21, McFarland, bank’s May 1921, Mr. On nothing had been done toward inform the vice- May Zimmerman, Mr. 24th, On building elevator. Surety Company at manager president, the office received referring to the letter City, wrote Kansas Company “intimated” McFarland, Mr. stated that subscribed, asked be informed $8,000 had been again con- cashier of the situation. The bank what com- McFarland, Mr. who advised that ferred with *9 opinion $8,000 being the the raised, that plete should be the Company obliged to construct the ele- proceed to was not Elevator paid. the were until the balance of vator five 28th, procured the bank then the May cashier On the pay $1,400, bank the additional the amount of to into stockholders Company by the until the Elevator should issue bank to to be held May 30th, The cashier testified for the that about stock same. them telephone Company over the the Elevator that he informed gave completed, parties were the names of $1,400. May issued amount should be On to whom stock Company bank, claiming wrote Elevator to there 30th the paid, saying in yet be subscribed letter it had $1,900 to not under the payment testimony as full contract. The accepted explain fails to saying Company the Elevator that what meant they only $6,100. Company had received had re- That the Elevator ceived the deposit $6,272, Liberty certificate of for bonds in the beyond amount of $500, question. testimony The shows that Company deposit, sold the certificate of but what received either for deposit Liberty certificate for the May 31st, Company bonds not shown. On the Elevator wrote to McFarland, Mr. from him May 21st, answer dated to letter might completed referred his to statement that the elevator for Company time harvest. In letter the Elevator also claimed only $6,100, suggested that the amount date was but prorate said letter subscribers would the remainder of $1,900 among themselves, then done, as soon as this was Company carry 'work, would rush the out its quickly possible. 9th, contract as On June Com- pany manager McFarland, referring wrote Mr. Mr. McFarland’s May 21st, letter saying he been told had Company kept contract, the farmers had not and the amount of had not 9th, been subscribed. June About by the cashier, deposit Mr. Schroeder, sent certificate of for $1,078 to Mr. attorney McCanles, City, an in Kansas to be him delivered to the Elevator Company, payment balance1 of the subscriptions. This certificate, explained in his Schroeder testimony, represent $1,400, was intended to less a. commission per obtaining of fifteen cent him, subscriptions, and a two-per-cent commission the bank. The amount of however, tendered, represented a deduction of than more seventeen per The Company accept cent. refused to the offered payable certificate. It was six months date with after interest at per four cent. On 23rd, deposit June a second certificate of payable drawn to the Elevator amount $1,372, delivery also was forwarded McCanles complete of the stock to the sub- scription. refused accept this, because two-per-cent discount, appears and it also that certificate signed. 28, 1921, attorney On June for the Elevator McCanles, saying wrote to Mr. should full sent in bank draft. About the middle July, 1921, Schroeder, cashier, Mr. Mr. Kissick Thews, and Mr. two McCanles, Mr. subscribers, and also the attorney mentioned, manager Zimmerman, called Mr. City. persons his office in Kansas four named testified they with Mr. Zimmerman they
in their talk informed -him Beverly complete in the bank at the subscriptions. testimony indicates that at this time there minds of these
449 Zimmerman, suspicion Mr. especially a belief or persons, carry solvent, was not or able to out its July. This talk occurred about middle It contract.
agreed upon for the trial the receiver appointed July testimony 1921. 21,' Schroeder, Kis- on Zim- was that in this Mr. sick, conversation, Thews and McCanles he think money merman stated did not mentioned should they company paid to unless were sure complete the The witness Kissick testified that elevator. would returned, asked whether the should or Zimmerman was “No,” said, and Zimmerman to the Elevator delivered hang saying: they $1,400,” “You had better “should though they going give them, it looks as are because not not way.” Zim- Ye will lose than we will more this build the elevator. glad paid. The been evi- said he was the balance not merman premium $80 received a Surety'Company dence is that return executing retained, and made no offer which it any any testimony letters, or is no same. There Surety Company testimony, in the referred to conversations it had been any force, bond was not or that claim that the change or failure of the any contract, released contract. conform to subscribers to terms questions by defendant must be considering raised there In governing surety in cases wherein rules in mind certain kept compensation. engaged in for a executing that business the bond is jurisdictions all practically this and It is the rule in compensation, contract surety company acting for a a case of against strongly surety in favor of most construed will be contract; by the courts indemnity provided also, regard following such contract as one the nature that rule a . v. be construed insurance contract and so to an [Lackland 581; 264 133; Cochrane, v. Mo. 256 Mo. State use Renshaw, 700; 270 S. Grill& Sons W. Rule Fidelity Deposit Co., & Co. v. John 347; Ogden, 192 App. Deepwater Mo. Bank v. Anderson, 160 v. Bonding 197 Co., Police Relief v. American 243; Assn. App. Mo. Cyc. 306; 12 R. 382 430; 1162, 1163; A. L. App. R. C. L. Mo. (Annotation).] course, foregoing is a construction contracts of rule of
Of rule which holds It is not character. this or, plain contract, if the be am- terms of
beyond beyond the limits of reasonable biguous uncertain, construc- obligee, attending view of the circumstances favorable tion making of the contract. because, that the did become operative, is contended It paid, turning over whole *11 only $6,900 at that in violation of terms of the contract time obligation and The bond, which left no under the bond. other is, turning $6,900 contention pursuant over of the to or, change contract, contract, new an unauthorized and1 it upon premise other, liability rests the same as the that did not at- upon part. tach to and bond are be con- contract sight strued terms of the bond must together, but, the not be lost governing destroyed. control nor their makers this bond of the assumed construe the Elevator Company, to stating “predicated is bond, it and conditioned subscription payment of, by tributary territory and citizens of the Beverly $8,000, to the sum for which the subscribers are to re- ceive certificates for shares of beneficial interest in the Elevator Company.” The its and bond final defeasance states clause-, two surety alternatives under which would not liable. There is be no liability Company the Elevator shall construct the elevator ac- cording liability contract. The other alternative of no stated, is, Company if the “shall not construct the said agreed upon, elevator as shall return said and to the trustee for the benefit said subscribers the amount subscribed them not exceeding the sum of for distribution surrender respective subscribers certificates of beneficial interest Mill & Associated held them, said sub- to the proportion subscriptions scribers in such as the have been heretofore paid liability. trustee,” to said then is no there This subscriptions paid reference is trustee. The wras- only $6,900 executed and delivered when had been subscribed and paid, that, speaking using so as of the of its delivery, time “heretofore,” word it refers which had been made paid delivery in to the trustee before the execution testimony bond. -There a word of not oral it can said that the officials either knew or did not know much how paid been subscribed and at the time of the despite preceding execution of the Yet, bond. other condi- tions in bond, and the conditions in contract, the bond con- special tains this reference “heretofore” made and paid. provision “whenever,” is “at time,” whatever sum of shall have been into the the Elevator -was to proceed,, carried the inference might all have been not at the oil time execution the contract, but executed 'the bond, gave it the Elevator deliver. The bond, contemplates by its clause last the event that the Elevator Com- pany might elevator, doing might not construct the so, not already paid return in at the money, time execution of tlie bond, surety, recognizes the last clause of the bond responsibility or assumes payments for return of made before the execution of the bond, Company. not returned Indeed, respect of payments, return seems literally, surety’s liability payments to restrict to return made be- fore the was executed. If was in that clause that intended obligation would be proceed, under no operative and the bond would Whole until the paid, why word “heretofore” used? There is claim no *12 Company applying represented for the bond $8,000 paid. that all of the had been and The subscribed least that language part be can said of used in final the would the the of ambiguity. be that it into an If did un- so, introduced the bond dealing by bonds securities der all the authorities with the executed given which is hire, for that construction must be most favorable obligee reasonably may be view of drawn provision language existing circumstances. The used and of existing, to of as then referred a condition fact under consideration more. paid and no in, had been time, at that already very payments which had recovery is suit for was executed. the time the bond been made at consideration, the again part under to that of the clause "Werefer Company not construct shall if the Elevator provision that agreed trustee the upon, shall return to the amounts elevator exceeding ... in such subscribed “not paid made and subscriptions heretofore been have as the proportion connection satisfied. In this obligation was trustee,” in to said itself, which of the contract to last clause is called attention subscriptions over for provision: sums received “All contains Taking party.”. these paid the second $8,000 shall be to and above construction that it susceptible of the writings together bond is when the bond Surety Company, that contemplated by the than might be either more or less delivered, there be should be Surety Company would not more, the in. If paid subscribed $8,000. excess made subscriptions payments for the liable Company undertook Surety $8,000, less than equal or If delivered, if the bond already when the made return those itself or did not elevator, did construct Surety obligation of the subscriptions. return those any uncertainty, in case officers, its own drawn obligee. favorable to the which is most adopted be is to construction construed is not to language used the full sum payment subscription to make the so Com- liability any precedent condition money repayment liability avoidance as an or pany, already paid subscribers, in the event tlie Elevator did not build the elevator and did not make such return. The sub- already scribers who subscriptions, the amounts of their obligation $8,000, any legal a total less than the were not under pay m'ore, and the terms the contract and conditions written a recognition into the bond of this. are making The recitals and bond disclose plan, building tentative of an elevator estate, the trust to. property, if should be “made and territory tributary Beverly” citizens to the amount of $8,000; paying and the subscribers were to receive certificates for language shares interest in the beneficial estate. The used trust Surety Company view of all the made recitals to, existing and referred and in view of the circumstances at the delivered, susceptible time the bond construction Surety Company intended bind make return of itself to payments delivered, plan made at the time the through necessary failure failed, obtain the through payments, failure of the to construct failing failing elevator, so, pay- to do return the also ments at the time the contract and bond were executed and delivered. *13 urge payment $6,900
Counsel for defendant the the of pay delivery failure to the whole of sum the time of at the bond, of the violated the and under the circumstances agreement, liability shown constituted a new under which there is no surety, involving whatever on of the the and have cited cases change obligee the the of between an principal and a surety. without the of the We think consent these cases are not controlling, bond, under the terms of circumstances this and the existing presents when it was delivered. We think it a case where applicable in surety the rule is cannot make a defense which by principal. could be made the “Ordinarily, estops not whatever principal, estops the the sureties.” Blakemore, ex rel. v. [State Mo. l. “The ordinarily c. sureties can make no defense that 706.] principal. by not be their of responsi could The measure his any bility of theirs, principal measure act setting estops up him a personal operates defense to himself equally against surety.” Surety his R. Ci.L. In this bond the [21 999.] Company, reciting pay the condition that the subscribers should yet, $8,000, the sum of so farther framed bond, subscriptions already paid as to make the “made obligation. its to the.trustee” a measure of Under the circumstances principal bond could not have made shown, defense, as a $6,900 time the payment only of bond was delivered, nor successfully so. 'Company can the do requirement payment Elevator of waived the of deposit full sum of And of bond. payment stating after of condition not
existing, done, fixing as but as act to be follows that an proportion liability, of its “the hereto- or measure ’’ Trustee, thereby waived in effect made and in to the fore requirement payment the full compliance of with the beforehand upon deposit the bond. payment It is contended the terms acceptance money, was to made Liberty the certificate Company of the bonds and per commission bank of two cent deposit, with retention bond, and payment the terms not under nature of the transac- those direct violation of terms. was a Company procured the borne mind. The Elevator is to be tion did therefor. It the subscribers subscription and took the notes of bank. them to the collection, transferred but hold the notes not deposit issued Liberty bonds the certificate It took obligations of subscribers payment and satisfaction bank as $6,900. in the bond show The recitals to the extent indemnity the sub- an purpose the assurance of primary Company neither constructed the event the Elevator scribers sub- of their subscribers the amount elevator, returned to these nor these sub- Gbmpany concerns the scriptions. So far as made and $6,900, were scriptions the amount Acceptance by delivered. when the bond was trustee, deposit Liberty bonds and certificate delivered, the bond was subscriptions, when and in full Company The Elevator Company. to the Elevator $1,400 was due claim more than contention did its final existing The Ele- subscribers. subscriptions made upon the successfully here un- make the defense could vator surety cannot. consideration, we hold that der GO., concur. Ellison, is affirmed. Sedclon and judgment *14 C., foregoing opinion by Lindsay, PER CURIAM:-—The opinion judges All court. concur. adopted as the