American Surety Co. v. Ashmore

The opinion of the court was delivered by Greene, J.:

The defendants challenge the jurisdiction of this court to inquire into the merits of this cause on the ground that no judgment has been entered on the verdict against the plaintiff. This contention cannot be sustained. Section 5019 of the General Statutes of 1901 provides that this court may reverse or vacate an order denying a motion for a new trial. This may be done independently of the rendition of a judgment on the verdict. (Backus v. Clark, 1 Kan. 303 , 83 Am. Dec. 437 ; Osborne, Ex’r., v. Young, 28 Kan. 769, 774 ; Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476 .) A litigant may prosecute a proceeding in error to set aside an order refusing him a new trial although the verdict and judgment are in his favor.

The principal error assigned is the giving of the following instruction:

“If, then, you believe from the evidence in this ease that such an indemnity agreement was executed by these defendants to the plaintiff company; and that after the termination of the suit in the Texas court the plaintiff company took exclusive charge and control of the matter of the settlement of the costs of said litigation in the Texas court; that afterward correspondence and communications were had between plaintiff company and these defendants with reference to these costs wherein plaintiff company called upon these defendants to pay a certain judgment for costs rendered in said court against plaintiff, and that plaintiff company at the time represented to these defendants that said judgment comprised all the costs in said suit, and that upon payment of said judgment for costs by these defendants to the plaintiff to be applied to the payment of said judgment for costs plaintiff company *328 would release and discharge these defendants from all further liability to the plaintiff company under and by reason of said indemnity agreement; and if you further believe from the evidence that payment was so made by these defendants, Wellcome and Dunn, to plaintiff company to be so applied, and that it was the understanding between the plaintiff company and these defendants at the time that said payment was made that it was considered and understood- as a full and final settlement between plaintiff company and these defendants of any and all liability of these defendants to plaintiff under and by.virtue of said indemnity agreement, and that that was the understanding between the parties at the time said payment was made, and that said payment was so accepted by plaintiff company, then I instruct you that these defendants would not be liable to this plaintiff for any additional costs subsequently paid by it to the Texas court.”

This instruction should not have been given. There is no evidence to justify it. There is no evidence tending to show that the plaintiff represented to the defendants, as an inducement to them to pay the $194.29 costs, that this was all of the costs, or that the plaintiff represented to them that upon the payment of the $194.29 costs it would release them from further liability to it, or that it had or would cancel the bond. All the evidence on this subject is contained in the letters which passed between H. E. Valentine and the defendants. This correspondence is as follows:

' “Holton, Kan., May 5, 1903.

“H. E. Valentine, Res. Asst. Secy., Topeka, Kan.:

“Dear Sir — Yours of the 4th is at hand. Herewith find draft $97.14 in full payment of my share of your claim for costs in case of Sarah A. Dové et al. v. H. P. Howard et al., in district court of Grayson county, Texas.

“Please collect the other half from Mr. William Well-come as per your agreement, and send me a receipt releasing me from all liability on the bond.

Yours truly, Alex Dunn, jr.”

*329 “C — American Surety Company of New York.

“Alex Dunn, jr., Holton, Kan.: May 7, 1903.

“Dear Sir — I am in receipt of your favor of the 5th inst. enclosing draft for $97.14 in payment of one-half of the amount which the surety company has been notified is due on the bond written in the case of Sarah A. Dove et al. v. H. P. Howard et al. in the district court of Grayson county, Texas. I have collected the same amount from Mr. William Wellcome, and will today forward the entire sum to Texas to pay the costs.

“I cannot send you a receipt releasing you from all liability on the bond. While I am very certain that there will be nothing more taxed against the principals of the bond or the surety company in this case, and that we are free from any further liability, yet should there be any further liability the surety company will have to look to you and Mr. Wellcome to indemnify it.

Yours truly,

H. E. Valentine, Res. Asst. Secy.”

“Topeka, Kan., May 20, 1903.

“Mr. Alex Dunn, jr., Holton, Kan.:

“Dear Sir — I herewith hand you copy of letter and receipt written by the clerk of the district court of Grayson county, Texas, to the Dallas, Tex., representative of the American Surety Company, which would indicate that everything is settled and there can be no further liability against you and Mr. Wellcome. The originals of these I send to the home office of our company so that the bond may be canceled.

Yours truly, H. E. Valentine, Resident Assistant Secretary.”

These letters show that Mr. Valentine not only refused to release the defendants from their liability on their bond but plainly informed them that if further costs should be adjudged against the parties the surety company would look to them for protection.

In the absence of any evidence upon which this instruction can be based it was prejudicial error to submit it to the jury. For this reason the order of the trial court denying plaintiff’s motion for a new trial is set aside and the cause remanded, with instructions to grant a new trial.

All the Justices concurring.