UNITED STATES of America for the use of BUSSEN QUARRIES, INC.,
v.
Melvin THOMAS, Statutory Trustee of M.C. Thomas Construction
Company, Inc.
INDIANA LUMBERMENS MUTUAL INSURANCE COMPANY,
(Defendant/Third Party Plaintiff below), Appellant,
v.
Melvin C. THOMAS, and
Joan V. Thomas, individually, (Third Party Defendant below), Appellee.
No. 90-2815.
United States Court of Appeals,
Eighth Circuit.
Submitted March 11, 1991.
Decided July 9, 1991.
David M. Duree, argued, St. Louis, Mo. (Nicholas B. Carter, on brief), for appellant.
Elbert Dorsey, St. Louis, Mo., for appellee.
Before FAGG, Circuit Judge, and SNEED,* Senior Circuit Judge and LOKEN, Circuit Judge.
FAGG, Circuit Judge.
Joan V. Thomas and her husband, Melvin C. Thomas, signed an agreement prоmising to indemnify Indiana Lumbermens Mutual Insurance Company (ILM) for any costs incurred as a result of payment and performance bonds ILM issued for construction projects undertaken by Melvin Thomas's business, M.C. Thomas Construction Company, Inc. (M.C. Construction). After M.C. Construction defaulted on twо projects for which ILM issued bonds under the agreement, the United States filed the underlying case on behalf of Bussen Quarries, Inc. against ILM as M.C. Construction's surety, and M.C. Construction's statutory trustee. See 40 U.S.C. Sec. 270b (1988). ILM then filed a third-party complaint against Joan and Melvin Thomas individually based on the indemnity agreement. The parties settled the Bussen Quarries claim, and the district court entered a consent judgment in ILM's favor against Mеlvin Thomas. ILM tried the lawsuit against Joan Thomas alone. The district court found ILM fraudulently induced Joan Thomas to sign the indemnity agreement, and rеscinded the contract. ILM appeals, and we reverse and remand for further proceedings.
The parties do not dispute thе controlling facts. After Joan and Melvin Thomas signed the indemnity agreement on July 15, 1986, ILM used the agreement to issue payment and performаnce bonds for three construction projects. ILM issued bonds for the Blount Brothers project on September 4, 1986, the Harris-Stowe project on September 25, 1986, and the Veterans' Administration (VA) project on October 17, 1986. In this case, ILM seeks indemnity for amounts expended оn the VA bond. M.C. Construction did not enter into the contract with the VA until September 30, 1986.
Joan and Melvin Thomas signed the agreement at the officе of Cheryl Thomas, ILM's attorney and agent, who told Joan Thomas that as Melvin Thomas's wife, she had to sign the agreement so ILM could issue a bоnd for the Harris-Stowe project. Before signing it, Joan Thomas glanced at the agreement, which states:
WHEREAS M.C. Construction Co., Inc. requires оr may hereafter require suretyship upon certain bonds or obligations of suretyship and has applied or may hereafter apply to [ILM] ... to execute such instruments as Surety ... the undersigned ... jointly and severally ... agree ... [to] indemnify and save [ILM] harmless from and against every claim ... payable on demand of [ILM] ... by reason of having executed or procured the execution of said bonds or obligations....
Jоan Thomas testified she did not know the agreement covered the VA project or that she could be held personally liable, and that if she had known these facts, she would not have signed the agreement.
Because the facts in the record are undisputed, our rеview is limited to deciding whether the district court's conclusion that ILM defrauded Joan Thomas is contrary to Missouri law. See Air Terminal Cab, Inc. v. United States,
Q [Counsel for Joan Thomas]: [W]ho requested you sign the documents?
A [Joan Thomas]: My husband, Melvin.
Q: Did he tell you what the documents were?
A: He said that ... I had to sign a document ... for a bond to be issued.
....
Q: What did Cheryl Thomas tell you about the document?
A: She essentially told me the same thing that Melvin did[, that] my signature was required on the document, for a bond to be issued, for Harris-Stowe College.
....
Q: [D]id she tell you why your signature was needed?
A: The only reason that I was given by Melvin or Chеryl, was because I was Melvin's wife.
....
Q: In signing [the indemnity agreement], did you know that you ... could be held personally liable?
....
A: I had no idea, that I would be рersonally liable, for any jobs.
Q: If you had been told that you would be personally liable, would you have signed that document?
A: No, I wouldn't have.
....
Q: Now, were yоu told at any time [that the] general indemnity agreement applied to any job other than Harris-Stowe?
....
A: No, I was not.
We review de novo the district сourt's determination of state law questions. Salve Regina College v. Russell, --- U.S. ----,
To support her fraud defense, Joan Thomas identified two affirmative representations made by Cheryl Thomas: that Joan Thomas's signature was required on thе agreement so a bond could be issued for the Harris-Stowe project, and that her signature was needed because she was Melvin Thomas's wife. Joan Thomas failed to show these representations were false. No fraud exists when the representations made are true. Modern Enters.,
Nevertheless, if ILM had a duty to disclose that the agreement also covered any bonds M.C. Construction apрlied for in the future, Joan Thomas was not required to show a fraudulent representation or ILM's intent to defraud. Osterberger v. Hites Const. Co.,
Based on the undisputed facts, Joan Thomas failed to prove ILM fraudulently induced her to sign the indemnity agreement. Thus, we reverse the district court's judgment rescinding the сontract, and remand to the district court for further proceedings on ILM's third-party complaint against Joan Thomas.
Notes
The Honorable Joseph T. Sneed, Senior United States Circuit Judge for the Ninth Circuit, sitting by designation