Kimmel v. State ex rel. Anderson Banking Co.

128 N.E. 708, 75 Ind. App. 168, 1920 Ind. App. LEXIS 319

• Court: Indiana Court of Appeals
• Decided: November 18, 1920
• Docket: No. 10,535
• Status: Published

Opinions

McMahan, C. J.

Action by the State of Indiana, on relation of the Anderson Banking Company, hereinafter designated as appellee, to recover on a contractor’s bond signed by appellant Kimmel as surety. The facts were found specially and are in substance as follows:

Jacob A. Jenkins, Frank H. Hines and Daniel J. Dalton, as partners, in 1909 entered into contracts with ■the board of commissioners of Madison county for the ooiistruction of -two gravel roads under what is known as the “Three-Mile Road law.” They filed a bond with David J. Kimmel hereafter designated as appellant, as surety, conditioned among other things, that if the contract was awarded them they would “pay all debts incurred by them in the prosecution of said work, including labor, materials furnished, and for boarding the laborers thereon.” In December, 1910, said firm borrowed $3,000 of the appellee and, as security therefor, assigned the contracts and the estimates and allowances as made by the proper official on work to said bank. This loan was repaid. In March, 1910, Jacob A. Jenkins and Frank J. Hines were adjudged bankrupts and discharged as such. The parties interested in the contract thereafter upon consultation agreed that Daniel J. Dalton should complete the work under the contract and borrow whatever money was necessary for that purpose. Dalton thereupon completed the work under the contract and said roads were accepted by the board of commissioners. In order to buy material and pay the labor necessary to complete said roads, it was necessary for Dalton to negotiate certain loans of money and he entered into an agreement with appellee whereby it was agreed that appellee would advance or loan the money necessary to buy materials and pay the necessary-labor, the appellant, Dalton, to draw his checks upon relator for that purpose, and that Dalton would execute his notes with Alex Jones as surety in addition to the security of the bond which appellant had signed. Appellee placed to the credit of Dalton $300, July 14,1911; $800, August 4, 1911; and $1,000, August 11, 1911; all of which was checked out for necessary materials and labor. At the time when said several sums were placed to the credit of Dalton, he and Jones executed their notes to appellee; the first two being payable sixty days and the last thirty days from date. Said notes were given as additional security for said money so loaned. And at the time when they were given it was not possible to complete said contracts and have estimates made and payments made thereon until long after the maturity of the notes, which facts were well known to all the parties. When the contracts were completed and the roads accepted, materialmen had filed claims for materials, which claims were ordered paid out of the final estimate due the contractors. When these claims were so paid there was a balance of $324.25 due the contractors on the final estimate which was then paid to appellee on the sums so advanced by it. Appellee later commenced suit against Dalton and Jones on said notes and recovered a judgment thereon which is unpaid, although Jones is solvent and has property out of which the same may be satisfied. Dalton is insolvent and has no property subject to execution. Appellant knew of the condition of the work when Jenkins and Hines were discharged as bankrupts and knew that Dalton was alone undertaking to complete the work and that it would require money to buy material and pay the labor and left it to him to complete the work and to devise ways and means therefor. Appellant was an accommodation surety on said bond, without hire and without being indemnified, which facts appellee knew. Appellee continued to hold said contracts and assignment of estimates as security for said money so advanced and relied upon them as security therefor, and took said notes merely as evidence of the money so advanced and as additional security. Each of the notes was payable in a bank in this state and was governed by the law merchant. Appellee, at the time it advanced the money to Dalton, and when the notes were executed, refused to advance such money upon the sole security of the assignment of the contracts and, as a part of the transaction of executing said notes, it was agreed that appellee should continue to hold said assignments as collateral security therefor. Appellee at all times held the assignments and it was agreed between appellee and Dalton that appellee should hold and rely upon the assignments as security for all money it might advance for the completion of the contracts, and that the notes were to be taken by the relator merely as evidence of the money advanced and as security in addition to that afforded by the assignments of said contracts. Before the commencement of this action appellee released different tracts of land owned by Jones from the lien of said judgment, without appellant’s knowledge or consent. None of the materialmen or laborers so paid out of the moneys loaned and advanced by relator made any assignment of their claims to relator.

Upon these facts the court concluded as a matter of law that there was due appellee $2,306.57, and that it was entitled to a judgment against the principals and surety on said bond for that sum.

Appellant insists that the court erred in its conclusions for the following reasons: (1) That appellee elected to accept the notes of Dalton and Jones in discharge of the indebtedness for which this action is prosecuted and therefore waived any claim against appellant. (2) That the taking judgment on the notes against a solvent surety is an election on the part of appellee to accept such judgment as a settlement of, instead of security for, the liability for which the notes were given, (3) The notes being payable in bank, the right of appellee to recover from Dalton was merged in the notes and judgment and could only be enforced by proceeding on the judgment. That is, appellee by taking judgment on the notes released Dalton from liability on the bond and the release of the principal Dalton, released appellant. (4) The discharge-of Jenkins and Hines as bankrupts dissolved the partnership, and that appellant was not liable thereafter for money borrowed by any of the partners. (5) That appellee, having without the knowledge or consent of appellant accepted and held the assignments of the contracts throughout and after the discharge in bankruptcy and thereafter accepting a note with a solvent surety from one member of the firm who had not been declared a bankrupt and taking a judgment against such surety, released appellant from liability on the bond.

Appellant concedes that, when money is loaned to a contractor upon the credit of the contractor’s bond and is used by the contractor in paying for labor and materials used in the construction of a road, the claim is covered by the bond unless the surety is relieved by some act of the party seeking to enforce the liability.

The facts under consideration show that two of the members of the contracting partnership had been discharged as bankrupts and that the remaining member of the firm was insolvent, though not a bankrupt. In order to carry out the contract and complete the work, it was agreed that the insolvent partner, who was without funds or credit, should proceed under the contract and complete the work. He applied to appellee for funds with which to pay for material and labor. Appellee refused to advance the necessary money on the assignments of the contracts and estimates, the fulfillment of which contracts was secured by the bond signed by appellant, unless security was furnished in addition to’said assignments and bond. Thereupon the insolvent partner agreed to give appellee notes signed by Jones as such additional surety, the notes to be given as evidence of indebtedness only. Thereafter, as necessity required, appellee placed to the credit of the insolvent partner money to take up checks given to pay for necessary material and labor to complete said contracts, and the three notes hereinbefore mentioned were executed. When the work was finally completed and final estimates made, certain material-men and laborers filed their, claims as provided by statute and after they were paid there was a balance of $824.25 due the contractors on the final estimates, which was applied on the amount due appellee.

Appellee refused to advance the money on the strength of the bond and assignments of the contracts and estimates. Neither did it rely upon the responsibility and financial standing of the insolvent partner, Dalton, and Jones. It relied upon all these things in advancing the money. It never surrendered the contracts and assignments and at the time of the trial of this case still held them as security for the money so advanced to Dalton, and by an agreement with the contractors it relied upon the contracts and assignments as security for the money, for which the notes were given as evidence, and which were signed by Jones as additional security.

Under these facts it is clear to us that it was not the intention of the parties that the notes signed by Dalton and Jones, were taken, nor can they be considered, as a payment of the debts created when the money was loaned or advanced to Dalton. The notes, though negotiable under the statute, cannot under the facts be held to have been taken as payment of the loans for which they were given, nor to prevent appellee from maintaining an action against Dalton and appellant on the bond.

Appellant admits that under the authorities any indebtedness incurred in the construction of this work was covered by appellant’s bond, and that, where a materialman who has furnished materials for the work and the contractor give a note with the materialman as surety, in order to borrow money with which to pay the materialman, the surety on the bond is liable. See Title Guaranty, etc., Co. v. State (1915), 61 Ind. App. , 109 N. E. 237, 111 N. E. 19; State, ex rel. v. Adams (1918), 187 Ind. 165, 118 N. E. 680. In considering the questions involved in this appeal, we must keep in mind that the notes signed by Dalton and Jones were not given for the protection of appellant, but for the further protection of appellee.

The taking of the notes by the bank and the requiring of the additional security did not make the facts as found operate'as a payment of the debt, nor change the liability of appellant as surety. The time when the work on the roads could or would be completed was uncertain. Appellant’s contract of suretyship was indefinite and uncertain as to what the liability would amount to, or when, if at all, he might be called upon to pay. The amount, if any, that appellant would be called upon to pay could not be ascertained until the work was completed, the final estimates made, the roads accepted and the amount of the unpaid claims for material, labor, etc., ascertained. The court found that it was not possible to complete the work under the contract and have the estimates made until long after the three notes matured. There was, therefore, no extension of time that could possibly injure appellant in any way. Indeed it would not have had the effect of releasing appellant, if the time for paying the notes had been extended beyond the time when appellant’s liability could have, been ascertained, as under the contract and bond the contractor had authority to contract for labor and materials and to enter into an agreement with the parties for the payment therefor at a fixed future date, without releasing appellant from his liability as surety. State, ex rel. v. Adams, supra. The fact that the appellee took a judgment against Dalton and Jones on the notes did not operate as a payment of the debt. The appellee was under no obligation to appellant to collect the amount advanced to' Dalton from Jones, or to make any attempt to do so. Neither was it under any obligation to issue an execution on the judgment. If there had been an execution issued and a levy made on property of Dalton and the relator had released such property from the levy to the injury of appellant, a very different question would be presented. The collateral or additional security given to the relator by reason of Jones having signed the notes was not given to protect the appellant and did not in any way change or affect his liability. In so far ás he is concerned the appellee might, if it saw fit, release Jones from all liability, and not in the least increase the liability of appellant as fixed by his contract of suretyship. If appellee had recovered a judgment against the principal debtor and appellant, or against the principal alone, and an execution had been issued thereon and levied upon property of the principal subject thereto and such property by the act of the appellee had been released from the levy and lost as a security, appellant would have been discharged to the extent that he was injured thereby. 1 Brandt, Suretyship (3d ed.) §489. This is on the theory that after a levy the creditor is regarded as a trustee of the execution for the benefit of all persons interested and he will not be permitted to release the levy to their injury. The appellee here has released nothing to the injury of appellant. See Springfield, etc., Co. v. Park (1891), 3 Ind. App. 173, 29 N. E. 444.

The appellant was liable on his bond to the appellee for the money advanced and loaned to Dalton, and we hold that the fact that appellee has taken a judgment against Dalton and Jones and has released .some of the real estate of Jones from the lien of that judgment does not have the effect of releasing appellant from the obligation of his contract. In fact, if Jones had been compelled to pay appellee, he would have been subrogated to the rights of appellee, and could have maintained an action against appellant on his bond.

The discharge of two of the principals as bankrupts did not release appellant from liability on his bond. Michener v. Springfield, etc., Co. (1895), 142 Ind. 130, 40 N. E. 679, 31 L. R. A. 59.

We have given careful consideration to the authorities cited by appellant. They are not of controlling influence and are not inconsistent with anything in this opinion. Judgment affirmed.