Hart v. Stribling

Mitchell, J.: O. B. Hart was the guardian of Mary E. Hart, now Stribling, and Moody and Baldwin were the sureties on Plart’s bond as such guardian. Hart obtained orders, under the statute, to sell real estate of his ward, and was required to,give additional bonds to secure the ward for moneys which might come to his possession under said orders of sales, and C. L. Robinson, H. H. Hovy and Ozias Buddington became sureties for Hart on the additional bonds. The sales were made and considerable sums of money arising therefrom went into the hands of the guardian. The ward attained her majority August 23d, 1871, and-O. B. Hart, the guardian, died March 18th, 1874, leaving Catherine S. Hart (widow of the deceased) executrix of his will. — 444 — The ward, Mary E. Hart, was married to Thos. E. Stribling on the 23d of July, 1879. The original bill was hied on the 3d of September, 1880. The bill, among other things, alleges that large sums of money belonging to the ward went into the possession of the guardian, for which he never accounted. A final decree was rendered in the cause in favor of complainants, but was subsequently opened, and from the order of the Chancellor opening such final decree complainants appealed, and in Stribling et ux. vs. Catherine S. Hart et al., 20 Fla., 235, the ruling of the Circuit Court in opening said final decree was reversed, and the case sent back to the court below. The merits of the case were not passed upon in the decisions, supra. The case went back to Duval county, and the Chancellor, in conformity with the decision of this court in 20th Fla., vacated his said order opening the final decree prior thereto granted therein. From the judgment originally given and remaining after this order of the Chancellor, so vacating the order before made by him, the defendants appealed, and the canse was again here in Catherine S. Hart, executrix of the last, will of Ossian B. Hart, deceased, Abel S. Baldwin, Pa-ran Moody, Calvin L. Robinson, William P. Marvin, administrator de ionis non of the estate of H. H. Hovy, deceased, and Ozias Buddington, appellants, vs. Thomas E. Stribling and his wife, Mary E. Stribling, appellees, 21 Fla., 136. It will be seen that when the case was here the second time (in 21 Fla.) the sureties upon the additional bonds of O. B. Hart, as guardian aforesaid, were still parties defendant to said suit, but the court held, when the cause was here the second time, that the sureties upon said additional bonds were not proper parties to said suit, and the cause was reversed upon this ground, and again sent back to the court below, and certain amendments to the pleadings — 445 — were then made, which opened the final decree first granted therein, which allowed the defendants to make their defence upon the merits of the cause, which they did make, and the cause is now before this court the third time — this time upon its merits. Counsel for appellees contend that the cause was settled upon the law and upon its merits, by the decision in 20 Fla., supra, and, if they are correct in this, we have nothing to do but to affirm the proceedings of the court below, because it is well settled that whatever has been decided upon appeal cannot be re-examined on a subsequent appeal brought in the same case by the same parties. Wilson, executrix, et al., vs. Fridenburg, 21 Fla., 398; Clark vs. Keith, 106 U. S. 464; 94 U. S. 498; 17 Wall., 283; 12 Wall., 129; 116 U. S. 567, and numerous other authorities. But was the law of this case settled in 20 Fla. ? Under the statute (McClellan’s Dig., p. 345, sec. 21,) it is provided that “the judges of the Supreme Court of this State shall, in deciding cases, prepare and make a syllabus or statement, of the points and principles intended to be decided by the court, which shall be published in the reports in lieu of that usually prepared by the reporter.” Upon examining the syllabus in Stribling and wife vs. Hart et al., in 20 Fla., it will be seen that the syllabus refers exclusively to questions of practice, and does not touch the merits of the case, and this shows that the court did not intend to pass upon and settle the case upon the law and the merits thereof. But suppose we are mistaken in this, and suppose that the court did intend to decide the case upon its merits as well as upon the questions of practice, this does not change the conclusion that the court did not, and could not, decide the case upon its merits, because 'the merits of the cause were not then before the court. The only reasonable conclusion that can be arrived at in — 446 — regard to the decision in 20 Fla. is that the opinion there expressed upon the merits of the cause was the mere dictum of the Justice rendering the decision. The dictum of a Judge is not the decision of a court. “ There is nothing authoritative in a case, except what is required to be decided to make the final judgment, and that by the judgment becomes res adjudicate between the parties as to the subject matter of the suit.” Love vs. Miller, 35 Ind., 294; (21 Am. R., 196;) see also Roahrbach vs. Germania Fire Ins. Co., 62 N. Y., 47, citing 4 Burr., 2064, 2068, and Rouse vs. Moore, 18 John. R., 407, 419. An obiter dietiom, in the language of the law, is a gratuitous opinion, an individual impertenance, which, whether it be wise or foolish, right or wrong, bindeth none, not even the lips that utter it. Old Judge, taken from the title page of a work on obiter dieta published by John D. Allen, New York, 1885. These authorities completely overthrow the contention of appellees’ counsel that the merits of this cause were settled by the decision in 20 Fla. After the case had been reversed the second time, and after the amendments to the pleadings as aforesaid, the defendants answered, and set up an alleged settlement between O. B. Hart, guardian, and his ward, dated June 4th, 1872, and that upon said settlement it was found that the balance due from the guardian to his ward was $3,646, and that he gave the ward his promissory note for $3,000, due at 12 months with 12 per cent, interest per annum. (As to why the note was not given for the full amount of the balance so found to be due the ward is not shown, but we infer from proceedings and settlements shown in the record - that the residue was claimed by'the guardiau for board for his said ward.) That the estate of O. B. ITart was found to. be insolvent. That the ward held the note so given her by her guardian — 447 — for more than eight years before bringing this suit. That Mrs. Stribling presented the said note to the executrix, Mrs. Hart, as a claim against the insolvent estate of O. B. Hart; and also sets up Mrs. Stribling’s satisfaction and confirmation of the settlement' with her guardian, and her long acquiescence and positive acts to show that she considered said settlement with her guardian as binding and final, at least as to the sureties, Baldwin and Moody. The answers were excepted to on several grounds but the exceptions were overruled. The testimony was taken and the Chancellor decided that the complainants were entitled to the relief prayed for, but counsel for appellants say that the Chancellor remarked at the time that he had not changed his opinion, but the Supreme Court had taken a different view of the case ; and they further contend that the Chancellor was influenced in his decision by the “ obiter dicta ” of Judge Westcott before referred to in 20 Fla. R. M. Call, Esq., was appointed referee to take testimony, an accounting, &c. By the final accounting the referee found that on the 2d day of June, 1872, (two days before the note was given) the guardian owed his ward $2,905, which, with interest upon annual rests, amounted to $8,137.40, and on October 11th, 1S86, complainants having remitted all amounts due them in excess of the, sum of $8,000, (amount of the penalty of guardian’s original bond), it was decreed that they recover of the defendants the sum of $8,000 and costs; and defendants appealed. The bill alleges no fraud on the part of the guardian at any time, and in the absence of such allegation, and in view of the fact that at the time of said settlement between the guardian and ward, the ward was legally capable to contract and be contracted with, and in view of the further fact that the note given, by its terms, extended the time in — 448 — which the money was to be paid, the sureties upon the guardian’s bond were, by such extension, released from said bond. Fellows vs. Prentiss, 3 Denio, 512; Bangs vs. Strong, 7 Hill, 250; Rathbone vs. Warner, 10 John., 587; Bangs vs. Masher, 23 Bar., 478; 6 Duer, 294; Huffman vs. Hurlbert, 13 Wend., 312; Gahn vs. Neimcewiez, 11 Wend., 312. By the settlement between the guardian and ward the sureties were deprived of an opportunity of obtaining indemnity by reason of rendering it unnecessary, and perhaps impossible, for them to take any steps to secure themselves, for how could they require Hart, the guardian, to account, when the only one to whom they were accountable had voluntarily released him by extending the time in which to pay the money then due? The ward, after attaining her majority, instead of requiring the guardian to pay the money due her, settled with him by taking his note and extended the time for payment, without the knowledge or consent of the sureties, and in so doing she released the sureties and relied upon the.note for payment instead of relying upon the bond. That the ward had the right to make such settlement, and that the settlement is binding, unless it is shown that the guardian obtained it through fraud or undue influence, is a proposition that cannot be doubted ; and the ward having acquiesced in such settlement for more than eight years, certainly justice does not now demand that the sureties shall be made to pay that which she lost by said settlement, whether it were wise or not. A release to a guardian, by his ward after coming of age, with full knowledge of the facts, and in the absence of any undue means used on the part of the guardian to obtain it, is binding. Kirby vs. Taylor, 6 John., Ch. 242; Brewer vs. Vanarsdale, 6 Dana, (Ky.,) 204; 3 Wait’s Ac. and Def., 570. Now there is nothing in this case to show that there was — 449 — any fraud or undue influence on the part of the guardian to induce his ward to enter into said settlement, nor is there anything to show that the settlement' was not in the ward’s interest, had she taken the proper legal steps to collect the note when it fell due. The note was given in 1S72, fell due in 1873, and the guardian did not die till 1874, and there is nothing to show that the ward could not have made the money on the note in the meantime. The ward in her testimony says that there was never any account rendered her by -her guardian, showing what had become of her money, and that the guardian did not make any statement to her at.the time he gave her the note, that it represented the balance due her. That she supposed her guardian gave her th.e note tor $3,000, for the old note which was for $3,600, the guardian claiming certain charges for board for the ward to offset the $600. That she -was in the office of her guardian a great deal, and that the note was given in the office ; that she never asked him for a settlement. That she knew7 nothing of the settlement of his accounts, and that she lived with him to the time of his death. This testimony may all be true, but it must be remembered that it was given many years after the death of the guardian, and that the guardian was the only person who could at any time have explained or contradicted such testimony. Such testimony should be looked upon with suspicion, and especially is this true when the testimony is considered in connection with the acts of the ward, in regard to the settlement, both before and after the death of the guardian. In the case of Hoffman vs. Hurlburt, supra, it is held that if the extension of the'time for the payment of a bond is without consideration, the sureties are not released, and this is in conformity with the current of authorities on the subject, but that .’doctrine is not applicable to the ease at bar, for the reason that'in this case the ward took the guar — 450 — dian’s note due at twelve months with 12 per cent, interest per annum, which makes the consideration for the extension of time plainly apparent. But appellees contend that indulgence by complainants did not discharge the sureties from their liability on the guardian’s bond, citing Dorman vs. Bigelow, 1 Fla., 281; Mitchell vs. Cotten, 3 Fla., 134; Pfeiffer & Sullivan vs. Knapp, 17 Ibid, 144; Newel vs. Hamer, 4 Howard, 684; Leading Cases in Equity, part 2, Vol. 2, 1000. The doctrine laid down in the first case cited, supra, does not apply to this case. In the next case, (Mitchell vs. Cotten) the court say: “Concealment by a creditor from a surety of material facts, by which the surety may be injured, or his rights affected, will invalidate the contract as to him, and discharge him from all liability. But the contract between the principal parties, of which a surety without privity, can avail himself for his discharge, on the ground of concealment, must be a valid contract as between the principals; and the act or transaction of which the surety seeks to avail himself for his discharge must be such as lessens the ability of the principal to comply with his contract, or alters the rights of the parties, or enlarges the demand to the prejudice of the surety. This authority does not sustain the position assumed by the appellees, because in the case before us there is nothing to show that the settlement between the ward and guardian by which time was extended to the guardian to settle his indebtedness to the ward, was known to the sureties; on the contrary, the natural inference is, that the extension of time was only known by the parties to that transaction, and if so, it will certainly not be contended that facts material to the sureties’ interests were not kept from them, and if such material facts were kept from them, the decision in Mitchell vs. Ootten certainly is not in conformity with appellees’ propo — 451 — sition. Certainly the rights of the parties upon the guardian’s bond were “ altered ” by such extension of time for payment from the ward to her guardian, and under the decision in Mitchell vs. Gotten, the sureties were thereby discharged from the bond. Id the next case, Pfeiffer & Sullivad vs. Knapp, the court held : “ The short delay to institute suit in this case does not relieve the surety even upon a simple contract of suretyship independent of express conditions, such as stated in this bond ; mere indulgence at the will of the creditor extended to the debtor in no way. discharges the obligations of the surety. It is a settled rule that there must be a valid common law agreement to give time, founded, of course, on a good consideration, to have this effect ” (Citing 5 How., 207; 3 Ran., 328; 1 Leigh, 435; 12 Wheat., 554; 44 Ind., 67). Now the difference between the case of Pfeiffer & Sullivan vs. Knapp and this is, that in the former there was amere indulgence in a short extention of time to the debtor, without any consideration, and it in no manner “ altered ” the relations of the parties to the bond, but in the case at bar, there was a consideration, and the rights of the sureties to-the bond were effected by such extension of time. The court plainly intimate in. their decision that where there is a valid agreement for a valuable consideration, for the extension of time to the principal, it will discharge the surety. In the case of Newell vs. Hamer, 4 How., (Miss.,) it is held that a voluntary postponement of an execution on a forthcoming bond by the creditor at the suggestion of the principal debtor, does not discharge the surety, when there-is no consideration for the indulgence, nor binding agreement to delay the execution of the judgment until a particular period. There must be a positive and binding agreement, based upon a -valuable consideration, sufficient to tie' — 452 — up and restrain the creditor during the time for which the indulgence is given or it will not be a.fraud upon the rights of the surety, nor discharge him from liability’-. This case clearly does not sustain the position assumed by appellees. Appellees also cite the case of J. D. Gilleth vs. John E. Wiley, Vol. 15, Western Reporter, 171, and seems to rely upon it with much confidence for an affirmance oí this case. In that case the guardian obtained the receipt of his ward for a large sum of money, and the court say : “ The complainant’s receipt filed by the guardian is prima facie evidence that Iiis guardian on or before July 1, 1869, paid him the sum of $2,677, but is not conclusive. Like any other receipt it is open to explanation or contradiction. (Citing Scott vs. Bennett, 8 Ill., 245; Walrath vs. Norton, 10 Ill., 437; Frink vs. Balton, 15 Ill., 343). “The evidence clearly establishes that the receipt is not true and that the guardian never in fact paid the complainant said sum of money or any part of it, and that there had at no time been a settlement between the guardian and ward.” Thus it is seen that the receipt in the case supra was obtained through fraud, and it follows of course that the ward was not bound by it — differing from the case at bar in that no fraud is shown in this. Now we have most carefully examined this whole case, and all the authorities to which we have had access bearing upon it, and after doing so we are of.the opinion that the ward by said settlement with her. guardian, and in taking his note and extending time to him in which to pay money then actually due, relie! upon the note for payment of such indebtedness in lieu of the bond, and thereby- released the sureties. The decree is reversed, and the cause remanded with directions that the bill, as to the sureties, be dismissed, and — 453 — for such further proceedings as to the executrix, as may be proper aud not inconsistent with this opinion.