FEDERAL SURETY CO. v. MILLSPAUGH & IRISH CORPORATION, 14 F.2d 937

ALSCHULER, Circuit Judge (after stating the facts as above). Most of the propositions raised turn upon the extent of the authority of one Seoonover, the Indiana state agent of the surety company, who on its behalf secured the business, and at Indianapolis signed the bonds in the name of the surety Company, “by E. J. Seoonover, Attorney in Fact,” and attached the company’s seal. From this mode of signing it is contended for the surety company that all concerned were notified of Seoonover’s limited agency, and that for the extent of his authority resort must be had to the instrument creating it.

This instrument it was sought to introduce in evidence, but it was excluded. It provides in short that Seoonover should represent the company in Indiana in the placing of business, appointing the subagents, and the like, with power to execute and deliver bonds, but makes no provision for his settlement of claims or binding his principal in any other way, and specified that the agent shall not alter any contracts entered into.

The obligee of the bonds knew nothing of such delegation or of any limitation of Scoonover’s authority, but it appears that upon the printed stationery supplied by his company and used by him in his frequent correspondence with it, as well as with the public, including Millspaugh Company, Seoonover is described as “general agent for the state of Indiana,” and there is nothing in all the record to indicate that as to the public Scoonover’s authority was different or less than ordinarily inheres in a general agent or a state of such a concern.

Through the exclusion from evidence of the power of attorney, plaintiff in error was not injuriously affected, since, whatever its limitation, Scoonover’s apparent authority as general agent for the state was undisputed. When the Barley Company began falling behind in payments, Seoonover was promptly notified, and practically all of the steps thereafter taken — extension of time for payment, withholding or slowing up of further deliveries, negotiations for refinancing looking to the paying up of these obligations — were with the full knowledge of Seoonover, and generally with his consent and advice.

Not only this, but from time to time, by correspondence and otherwise, he kept the home office advised, and there were few, if any, of the substantial details of which it did not have knowledge, and in some instances direct participation. The situation was one where to assume that no one was looking after the interests of the surety company would be to ascribe to it the most palpable disregard of its own interest. It had placed itself in the very delicate position of being on both sides, in that it undertook to guarantee to each party to the contracts performance by the other.

This precarious situation was recognized by the home office, when it wrote Seoonover in December, after deliveries had stopped and payments were in arrear: “As you are aware, this is a peculiar case in so far as we are concerned, because it is out of the ordinary; we being surety on both sides of this contract.” Under date of following January, 1924, Seoonover wrote the home office that the estimated indebtedness to Millspaugh Company under the contracts was $40,000, much, if not all, of which had theretofore been from time to time renewed, and outlined the proposed plan for refinancing, and on February 4 wrote a formal letter to Millspaugh Company, signing it “Federal Surety Company, by Seoonover, General Agent in Indiana,” saying “the surety company gave its consent to the financing proposition, and will not void any outstanding liability of said bonds up to this date.” In this state of the record there is no merit in those various contentions of error predicated upon the admission in evidence of the statements and acts of Seoonover; and the contention also falls that extensions or renewals of notes and other obligations under the contracts were without the consent of the surety company, and thus relieved it from liability on such obligations as were extended or renewed, if, indeed, such extension or renewal made in good faith, without consent of a compensated surety, would of itself relieve it from further obligation.

The contention is made that the contracts of surety, being agreements to answer for the debt or default of another, must under the statute of frauds bé in writing to be valid, and that renewals or extensions of the indebtedness guaranteed must be in writing to be valid against the surety. If such writing were required, the above-mentioned letter of February 4 might well be so considered.

But here again the knowledge and active participation of the company by its home office eorrespondenee as well as the acts of its general agent in Indiana indicate not only its consent, but its desire, that the obligations should be renewed, in the hope that in some way means might be found for ultimately relieving it from its $100,000 of potential liability.

As early as August 27 Seoonover wrote: “If the Millspaugh & Irish Corporation would let some of this paper go to protest, then the fat is in the fire and we would all be in trouble.” It is apparent that the extensions were quite as much for the benefit of the surety company as any one else concerned. The knowledge it thus had of what was being done, together with its participation therein and consent thereto, estop it from raising any such question.

It is insisted that through /the form in which the extensions were effected, viz.: the Millspaugh Company giving to the banks which had discounted the Barley Company paper its own checks therefor, and taking new Barley Company notes, which the banks in turn discounted, the notes were paid and the surety company relieved. Millspaugh Company had discounted the paper and had to stand back of it. Protest was not desirable for any one concerned, and, above all, the evidence shows that Scoonover was fully informed of and approved this method of renewing or extending the obligations.

It is clear that payment was not intended nor effected by such transactions. The measure of damages respecting the undelivered completed bodies, the partly made bodies, and the materials on hand is vigorously assailed as being contrary to the asserted rule of damages in such eases. Under the facts we need not deeply concern ourselves with ofttimes highly technical questions of measure of damages on breach of contract. The acts of the parties respecting the unusual circumstances appearing are sufficient for the adjudication of the damages. While the body was the completed

article contracted for, it was not of itself a completed

article of commerce. It was apparent that these bodies had no general market by reason of their inadaptability to any chassis, other than that for which they were specially designed, but which was no longer being made. A purchaser was found who would take them if they were altered to fit his chassis, and this could be done only by making substantial and expensive alterations, which were made, and but for which it is quite evident that the made-up bodies would have been practically a total loss.

Substantially the same situation existed as to partly manufactured bodies, and also as to the materials on hand-whieh were of special shapes and dimensions, machined for the particular bodies in whose manufacture they were to enter. All such would have had but little more than junk value, had they not been handled practically as they were; and it is apparent from the evidence that Millspaugh Company adopted the best means for minimizing the loss and of securing the best net result.

The evidence tends to show that Seoonover was kept posted with reference to the salvaging of the bodies and materials; indeed, it would be quite unreasonable to suppose that the surety company with its very substantial interest in having the largest amount realized, would not have kept, itself informed of what was being done. Statement of the results was submitted and passed upon on behalf of the surety company, and at no time does it appear any objection was made to what was done or being done.

Under all the circumstances, and apart from the strict rules for admeasuring damages as between parties dealing at arm’s length, the evidence fairly warrants the conclusion that what was here done in that regard was in the surety company’s interest and met with its approval. Upon the record before us, the recovery was fairly within' the warranted maximum, and we perceive no error whereof the surety company is justified in complaining. The judgment is affirmed.