In Green v. United States Fidelity & Guar- [as to the time the notice should be given, anty Co., 135 Tenn. 117, 185 S. W. 726, the or the method of giving the notice between original bond was effective for the period the bond of the Bankers' Surety Company from February 1, 1908, to February 1, 1909, and that of the Southern Surety Company, and there were thereafter executed annual we are inclined to the opinion that the pro"continuation certificates," the last of which visions in that respect as contained in the expired on February 1, 1913. Demurrer to bond of the Southern Surety Company should the complaint was sustained by the lower prevail. court, on the grounds that the only bond or renewal in force covered a period from February 1, 1912, to February 1, 1913, and that it was not alleged that the loss claimed to have been sustained, or the acts out of which such loss arose, were committed within said period. The Supreme Court of Tennessee, in reversing the lower court, said: "In some senses the renewal effected by the continuation certificate is a new or 'separate' contract. This it may be without being 'independent.' It is requisite that the minds of the original parties meet again in assent to the extension of the contractual relation over the new period; and it depends upon the payment of a distinct consideration. But those facts have not been deemed sufficient to make the payment of two penalties obligatory as upon distinct contracts. Neither, in our opinion, do they give occasion, necessarily, to the obligations being treated as independent in the matter of fixing the period for discovery in order to liability. The original bond incorporates terms that project it forward to cover the renewal period, without separating the periods for discovery purposes. The reason, in our view, is the purpose on the part of the company to hold the indemnified person to persistence as a patron. In another field of insurance a cumulative feature appears; frequently in accident insurance the recoverable sum is made to be an augmenting quantity from year to year, for quite a period, provided the policy is kept renewed by the payments of continuation premiums." We shall now discuss the remaining question involved, and that is, Did the Citizens' Savings & Trust Company substantially comply with the provisions contained in the bonds of the Southern Surety Company as to notice of the discovery of the defalcations of Lomnitz? While we have held that the several bonds, the riders attached thereto, as well as the renewal certificates, constitute one continuous contract, but this continuity applies more particularly to the purposes for which the bonds were executed which was to secure the Citizens' Savings & Trust Company against the defalcations of its employee, Lomnitz. While the rider attached to the bond executed by the defendant to the Bankers' Surety Company, as well as the rider attached to the bond of the Southern Surety Company, provides that the bonds executed by both plaintiff and defendant were made subject to all the terms and conditions of the bond executed by the Bankers' Surety Company, this provision should receive such a construction as would effectuate the intention of the parties. If there should be any serious conflict as to the kind of notice, or Lomnitz died on March 31, 1915, and during the life of the bond executed by the Southern Surety Company, and the reinsurance bond of the defendant; therefore, under the provisions of the bonds, the Citizens' Savings & Trust Company had six months from the 31st of March in which to discover any loss resulting from the defalcations of Lom nitz. Immediately upon the death of Lomnitz, accountants were employed to investigate the records covering transactions conducted by Lomnitz. Upon learning that there might be irregularity in this account, the Citizens' Savings & Trust Company immediately telephoned Mr. R. H. Clark, the Cleveland agent of the Southern Surety Company, and had him to call at the office of the Citizens' Savings & Trust Company, at which time he was advised of the investigation then being made, and with the chances, as they appeared at that time, that the trust company might have occasion to make a claim against the bond of the Southern Surety Company. As stated above, the defalcation of the employee, Lomnitz, occurred in 1909, during the life of the original bond, the evidence fails to disclose the exact date of the discovery of the loss; but, on the 7th day of December, 1915, the formal notice was given the Southern Surety Company in writing by registered mail, addressed to the president of the company, at St Louis, Mo., and within 90 days thereafter an itemized claim provided for was furnished. [3] The Citizens' Savings & Trust Company had no claim against the Bankers' Trust Company or the Equitable Surety Company. The bonds executed by these two companies to the Citizens' Savings & Trust Company had long ceased to be effective in so far as a protection against any loss on account of the defalcation of Lomnitz. The only company that could be looked to by the Citizens' Savings & Trust Company for the loss was the bond executed by the Southern Surety Company, and this bond provided for any loss discovered within six months from the death of Lomnitz. The shortage of Lomnitz was discovered within the time provided in the bond, and the giving of the notice was a matter subsequent to the discovery of the defalcation. There is no question but that the Southern Surety Company could have waived the failure to give the notice within time, and if a strict compliance of this notice was waived by the Southern Surety Company, we are not disposed to adopt the strict technical view, con (202 P.) tended for by the defendant, that failure to could have made any defense when sued for strictly comply with this provision of the one-half of the judgment paid by the Southbond could be taken advantage of by the de- ern Surety Company that could or should fendant company. Under the terms of the have been made by the latter in the original reinsurance bond, no provision is made for action, even though this defense had never notice on the part of the reinsurer, nor is been thought of or had been overlooked. the liability of the latter in any way condi- When the Southern Surety Company recogtioned upon compliance by the Citizens' Sav-nized its liability, or if the liability was in ings & Trust Company, with the conditions doubt, and it in good fath paid the $6,500, of the bond of the Southern Surety Company it would clearly be entitled to contribution as to notice. By the terms of the bond of the from the defendant for one-half of the defendant company, it is provided that it will amount paid. pay immediately to the Southern Surety In the case of Fireman's Fund Insurance Company one-half of any sums which the Co. v. Aachen & Munich Fire Insurance Co., Southern Surety Company shall become liable 2 Cal. App. 690, 84 Pac. 253, action was to pay, and pay for the defaults occurring brought to recover on a policy of reinsurance thereunder. The Equitable Surety Company as in the instant case. There, the defendant did not in any way condition its liability upon compliance on the part of the Citizens' Savings & Trust Company with all of the terms and conditions of its contract with the Southern Surety Company. No attempt has been made to show that the defendant company has; in any manner, been injured by reason of the failure to strictly comply with the provisions as to notice. The notice given to plaintiff seems to have been accepted and as sufficient under the conditions as they then existed, and plaintiff made no attempt to escape liability on the ground of failure to give strict notice. We cannot believe that it was the duty, under all the facts as shown by the evidence, of the plaintiff to have forced the Citizens' Savings & Trust Company to sue on its claim for $13,000, and have the liability determined by judicial proceedings before it could be in position to make claim against the defendant company; and, when the compromise was made by paying one-half of the amount claimed, this was as much for the benefit of the defendant company as it was for the plaintiff. claimed that it was not liable because of the fact that the payment for the loss incurred by the insured was a voluntary payment. The first paragraph of the syllabus reads, as follows: "The liability of a reinsurer depends on the terms of the policy of reinsurance, and not on the question of whether insured suffered a legal loss on the original policy." We conclude that the judgment of the trial court should be reversed, the cause be remanded for further proceedings not inconsistent with the views herein expressed; and it is so ordered. HARRISON, C. J., and MCNEILL, ELTING, and KENNAMER, JJ., concur. (84 Okl. 55) LEVIN v. COOK et al. (No. 10415.) (Supreme Court of Oklahoma. Nov. 29, 1921.) (Syllabus by the Court.) construction is to ascertain intent. The primary purpose in the construction of contracts is to ascertain the intent of the parties. 2 Contracts 147(3) - Intent to be ascer tained from entire instrument. In construing contracts the intention of the parties is to be ascertained by a consideration of the whole instrument. The contention of the defendant inevitably leads to the conclusion that, when the propo-1. Contracts 147(1)-Primary purpose of sition was made for the Southern Surety Company to settle the $6,500, one-half of the loss claimed, and the offer had been refused, and an action had been brought and judgment recovered for $13,000, and this amount being paid by plaintiff, and then the action had been brought against the defendant for $6,500, the defendant would claim that it was only liable for one-half of the $6,500, for the reason that plaintiff should have accepted the compromise offered. The judgment against the Southern Surety Company would not be binding on the defendant, as the proceedings would have been purely ex parte in so far as the Equitable Surety Company was concerned. The Citizens' Savings & Trust Company was not making any claim In an action by A. and B. against C. to reagainst the defendant, and if the position of cover on account for materials alleged to have the defendant should be conceded, and it not been sold to C. for the construction of a buildbeing bound by any judgment against the ing, where the evidence introduced on the trial Southern Surety Company the defendant of the cause shows that A. and B. furnished 3. Contracts 176(1)-Construction of unambiguous writing for court. The construction of a clear and unambiguous written contract is for the court. 4. Contracts 231(1)-Recovery for furnishing building materials to third party held limited by stipulation. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes A brief review of the evidence discloses and sold the lumber to D., who had contracted [ question as to whether the trial court erred with C. to construct the building, and that A. under the facts as disclosed by the record in and B. in furnishing the material to D. charged directing a verdict in favor of the plaintiffs. the same upon their books to D. and had entered into a written contract with C. and D., under the terms of which it was provided that, in consideration of C. depositing with F. the sum of $8,000, out of which sum A. and B. were to receive pay for materials furnished, A. and B. agreed to furnish to D. the materials with which to construct the building, and that they would protect C. from any other bills for material from whomsoever presented, held, that A. and B. cannot recover from C. any amount for materials furnished for the construction of the building in excess of the $8,000 stipulated to be deposited with F. in the contract, and that the court committed reversible error in instructing the jury to return a verdict in favor of A. and B. in an amount in excess of the $8,000 stipulated to be deposited with F. ac-of his contract of construction and furnishcording to the terms of the written contract. Appeal from District Court, Ottawa County; Preston S. Davis, Judge. Action by J. W. Cook and another, doing business under the name of the Cook-West Lumber Company, against Sam Levin. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions. J. H. Spurgeon, of Joplin, Mo., and Nesbitt & Nesbitt, and A. C. Wallace, all of Miami, for plaintiff in error. that about the 29th day of May 1917, the defendant, Sam Levin, entered into a written contract with Mike Stipel wherein Levin contracted with Stipel to build him a twostory brick hotel building at Commerce, Okl. Stipel, as contractor, agreed to build said building and furnish all materials according to plans and specifications prepared by Charles H. Sudhoelter Company, architects. The contract entered into between Stipel and Levin contained a bond to be executed by Stipel, which in terms was the usual bond executed by contractors for the purpose of binding the contractor to perform the terms ing the materials. It appears that Walter L. McCracken, of the firm of McCracken & Co day, real estate dealers, undertook to assist Stipel in securing sureties for Stipel in making the bond, but after some negotiations failed to get any one to sign the bond as surety, but that the plaintiffs, Cook and West, being lumber dealers, became interested in furnishing the material to construct the building, and that after some negotiations by the parties the following contract was entered into between Levin, the plaintiffs, and Vern. E. Thompson and Clyde Morsey, both Stipel, to wit: of Miami, for defendants in error. KENNAMER, J. J. W. Cook and John H. West, partners, doing business under the name of Cook-West Lumber Company, plaintiffs, commenced this action in the district court of Ottawa county against Sam Levin, defendant, to recover the sum of $2,664.45 alleged to be due the plaintiffs upon an account for lumber and supplies sold to the defendant. The plaintiffs attached an itemized statement of the account duly verified to their petition as Exhibit A. The plaintiffs alleged that the defendant had agreed to pay the account, but there remained due and unpaid the sum of $2,664.45. The defendant, Sam Levin, filed a verified answer, which contained a general denial of the allegations of the petition. The cause was tried to a jury in July, 1918, and after the introduction of the evidence on behalf of the plaintiffs and the defendant on request of the plaintiffs, the court directed a verdict in favor of the plaintiffs in the sum prayed for in their petition. Defendant filed a timely motion for a new trial, which was overruled by the court, and the defendant has appealed to this court to reverse and vacate the judgment and appears here as plaintiff in error. The parties, for convenience, will be referred to as they appeared in the trial court. The assignments of error as presented in the petition in error present for review the "Agreement. "This agreement made and entered into this the 29th day of May, 1917, by and between Sam Levin, of Joplin, Mo., party of the first part, and J. W. Cook and John H. West, of Commerce, Okl., parties of the second part, witnesseth that Sam Levin hereby agrees to adVance money to McCracken & Coday, of Comthe work done on a certain building, known as merce, agents, to the amount of 80 per cent. of the Alexander Hotel, which is to be erected, by Mike Stipel,, contractor, and inspected and O. K.'d by C. II. Sudhoelter, architect, who will pay all moneys so received to the said J. W. Cook and John H. West, or Cook-West Lumber Company, except labor bills presented by workmen with order from contractor. "Parties of the second part hereby agree that all moneys paid them by the said McCracken & Coday, agents, will be applied on material bills, for material furnished the said Mike Stipel, contractor, for said building, and further agree. that they will furnish all material used in said building, and will warrant the party of the first part against any and all bills from whomsoever for material used in said building, provided sufficient money is advanced by the said McCracken & Coday, agents, to cover such bills, and further agree to furnish party of the first part itemized bills for all material furnished by them. "Party of the first part agrees to advance to the said McCracken & Coday, agents, the unpaid balance of the contract price of $8,000 on the acceptance of said building by said architect. "The said McCracken & Coday hereby agree to keep an itemized statement of all moneys re (202 P.) "The said Contractor hereby agrees to advance the sum of $500 of his personal money ceived and disbursed by them, as above stated. [struction to the contract in question, it is "The above-described building to be located apparent that the intention of the parties on lots numbered 16, 17, 18, 19, and 20 in block to the contract was that the defendant was No. 36, in North Miami, Okl. to deposit with or pay to McCracken & Coday the sum of $8,000, and that the plaintiffs, in consideration of the payment of this sum of money to the said McCracken & Coday, were to furnish the material to Mike Stipel to construct the hotel being built by the defendant, and that the plaintiffs would protect the defendant against any and all other bills for material furnished in the construc on labor bills on above-described building. "McCracken & Coday, "By Walter L. McCracken. "Mike Stipel. tion of the building. The contract, construed as a whole, appears to be plain and unambiguous, and fixes the respective duties and liabilities of the parties to this action. The construction of the same was one for the court, and is decisive of the issues involved The evidence on the part of the plaintiffs disclosed that the materials which were furnished to Mike Stipel for the construction of the hotel built by Stipel for the defendant, Levin, were charged to Mike Stipel. The testimony of John H. West, one of the plaintiffs in the action, disclosed that an itemized in the action. 13 C. J. § 987, pp. 780, 781; statement of the account of the material furnished for the construction of the hotel was mailed to the defendant, which statement was introduced in evidence, and the same showed that the material furnished to Stipel was charged to him, and not to the defendant, Levin. Brown et al. v. Coppadge et al., 54 Okl. 88, 153 Pac. 817. [4] The plaintiffs' action is based upon their allegation in the petition that the material was sold to the defendant, which he contracted to buy and agreed to pay for, and their evidence conclusively, considering the written contract and the fact that the material was charged to Stipel on their books, shows that they failed to establish their cause of action except for the sum of $73.01, which the defendant admitted was the balance due on the $8,000 which he agreed to deposit with McCracken & Coday as stipulat The evidence is conclusive that the account on which the plaintiffs seek to recover was the account of Stipel, and not of Levin. The written agreement herein set out and introduced in evidence as Plaintiffs' Exhibit B clearly shows that, in consideration of the defendant in this cause paying to McCracken & Coday $8,000, plaintiffs agreed to furnished in the written contract. the material for the construction of the hotel in question, and that said plaintiffs warranted to protect the defendant against any and all bills from whomsoever for material used in said building. It is true that the contract provided if sufficient money is advanced by McCracken & Coday to cover such bills, but a subsequent clause of said contract placed a limitation upon the amount of money for Levin to deposit with McCracken & Coday to pay such bills, which amount was fixed at $8,000. [1] A rule of law well established applicable to the construction of contracts is that the primary purpose in the construction of a contract is to ascertain the intention of the parties as expressed. 13 C. J. § 482, pp. 521-523; Union Trust Co. v. Shelby Downard Asphalt Co., 55 Okl. 251, 156 Pac. 903; Nelson v. Reynolds, 59 Okl. 168, 158 Pac. 301; Brown et al. v. Coppadge et al., 54 Okl. 88 153 Pac. 817. [2] Another well-established rule of law in the construction of contracts is that, in ascertaining the intention of the parties, the instrument must be construed as a whole, and the intention of the parties deduced from the entire agreement, and not from any part or parts of it. 13 C. J. § 486, pp. 525527; Withington v. Gypsy Oil Co., 172 Pac. 634. This court has held that a subcontractor, materialman, or a workman between whom and the owner there is no privity of contract and in whose favor no direct liability has been imposed upon the owner is not entitled to a personal judgment against the owner. It is therefore obvious, in the absence of a contract with the defendant, Levin, and no privity of contract existing between Levin and the plaintiffs, they cannot sustain this action. Paulsen et al. v. Western Electric Co., 171 Pac. 38; Union Bond & Investment Co. et al. v. Bernstein et al., 40 Okl. 527, 139 Pac. 974. This court, in the case of Steger Lumber Co. v. Haynes et al., 42 Okl. 716, 142 Pac. 1031, held: "A subcontractor who furnishes material for the construction of a building is not entitled to a lien under section 4529, St. Okl. 1893 (section 3864, Rev. Laws 1910), to secure a claim for such material, to any amount in excess of the price at which he was bound by contract with the original contractor to furnish the same." In view of the authorities herein cited and the facts as disclosed by the record, the conclusion is inevitable that the trial court erred in instructing a verdict in favor of the plaintiffs, and the judgment must be reversed. We conclude that the plaintiffs are only entitled to recover such amount as is due [3] Applying these well-known rules of con- under the written contract or has not been paid as provided for in the contract of the $8,000. The cause is therefore reversed to the district court of Ottawa county, with directions to grant the defendant a new trial and proceed with the cause in accordance with the views herein expressed. ages from the Atchison, Topeka & Santa Fé Railway Company, a corporation, defendant. The plaintiff alleged in his bill of particulars that on or about July 23, 1914, the plaintiff was the owner of a fine milch cow giving about six gallons of milk per day; that on said date, without fault of the plaintiff, the HARRISON, C. J., and JOHNSON, KANE, cow escaped from a pasture and went upon and MILLER, JJ., concur. (84 Okl. 54) MCCORMICK v. ATCHISON, T. & S. F. RY. CO. (No. 10305.) the railroad right of way of the defendant at a section line crossing; that the defendant had unlawfully, wrongfully, and negligently kept and maintained a setting of Johnson grass upon its right of way; that at the time the cow entered upon the right of way of the defendant the Johnson grass was of a nice height to graze and feed upon, said grass (Supreme Court of Oklahoma. Nov. 29, 1921.) | having been recently mowed, and when moist (Syllabus by the Court.) was a deadly poison to live stock, and more especially to cattle; that the cow of the 1. Agriculture 8-Mere presence of Johnson plaintiff, after having entered upon the right grass not unlawful. Sections 98, 99, and 100, inclusive, of Revised Laws of 1910, prohibits the introduction into this state, or the sale, of any Johnson grass seed, except a person selling or giving away oats, hay, straw, seed, or grain containing or intermixed with the seed or roots of Johnson grass must disclose such fact to the purchaser, and makes it unlawful for any person, firm, or corporation to permit Johnson grass to mature seed upon any land, grounds, or right of way owned or controlled by such persons, but under the provisions of said statutes the presence of Johnson grass upon the premises of such parties is not made unlawful. 2. Railroads 405-Animal's death from eating poisonous grass held not actionable. In an action by the plaintiff against the defendant railway company for damages alleged to have resulted because the plaintiff's cow escaped from his pasture and entered upon the right of way of the defendant railway company and ate some second growth Johnson grass, causing death, where it appears from the evidence that the only negligence complained of by the plaintiff is the presence of the Johnson grass upon the right of way of the defendant company, such evidence is insufficient to establish a cause of action in favor of the plaintiff against the defendant, and the judgment of the trial court in favor of the defendant should be affirmed. of way of the defendant, ate some of the Johnson grass, and was thereby poisoned and immediately died, to the damage of the plaintiff in the sum of $150. Judgment was rendered in the justice court for the plaintiff. Defendant appealed the cause to the district court. On a trial in the district court before the court, a jury having by the parties been waived, the court found all of the issues of fact in favor of the plaintiff, but, as a matter of law, held that the defendant was not liable for the death of the cow, and entered judgment in favor of the defendant. This appeal is prosecuted by the plaintiff to reverse the judgment of the trial court. The assignments of error present but one question for review, which is decisive of this cause that the court erred in rendering judgment in favor of the defendant and in refusing to render judgment for the plaintiff. [1] Counsel for the plaintiff insist that the judgment should have been in favor of the plaintiff for the reason that the direct and proximate cause of the damage was the violation of a statutory duty of the defendant railway company; that the statutes violated by the defendant railway company are sections 98, 99, and 100 of Revised Laws of 1910 in that it was the expressed policy of Appeal from District Court, Noble County; our law under said statutes, supra, to exJohn P. Hickam, Judge. Action by W. H. McCormick against the Atchison, Topeka & Santa Fé Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed. Johnston & Robinson, of Perry, for plaintiff in error. terminate Johnson Grass. The statutes in question read as follows: "98. It shall be unlawful to introduce into or to sell or offer for sale within this state any seed of Johnson grass or Russian thistle except as hereinafter provided. "99. If any person shall sell or give away any oats, hay, straw, seed or grain containing or Cottingham, Hayes, Green & McInnis, of intermixed with the seed or roots of Johnson Oklahoma City, for defendant in error. KENNAMER, J. W. H. McCormick, as plaintiff, commenced this action in the justice court of Noble county to recover dam grass or Russian thistle without disclosing such fact to the purchaser, or transport the same over the lands of another without the consent of the owner thereof, he shall be deemed guilty of a misdemeanor and upon conviction thereof shall be fined not less than twenty-five For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |