Wynnegar v. Southwestern Co.

Ethbidge, J., delivered the opinion of the court. The appellant signed a surety bond to the Southwestern Company, Incorporated, binding himself for the payment for books, cash, and other goods furnished to Paul Wynnegar, son of the appellant, in the sum of [682] three hundred dollars. The son defaulted, embezzled property and funds of the Southwestern Company, Incorporated, and absconded. Suit was brought by the Southwestern Company against the appellant and the appellant pleaded that the bond was fraudulently procured by fraudulent concealment of material facts to the risk, and also that the bond was void because it was materially altered after its execution; the alleged alteration being of the clause originally reading as follows: “Provided the said Paul Wynnegar shall fail to make payment therefor within thirty-five days after date of each shipment for items furnished, and provided further that the indebtedness for which we hereby become responsible at any time shall not exceed three hundred dollars.” The words, “within thirty-five days after each shipment, ’ ’ were stricken out, and in lieu thereof the words, “at Nashville, Tenn., in fall ofi 1911,” written in said contract. The appellant testified that this modification was not in the contract signed by him and that the words were subsequently put in the bond by the ap-pellee or while in its custody. Appellant is supported in his testimony by his cosurety, Taylor; while the ap-pellee’s testimony is positive that the modification was made prior to its being signed by Wynnegar and 'Taylor. Appellant also testified that his son had been employed from 1904, or thereabouts, until 1911 when the bond was signed, and that Paul Wynnegar had not been at home, but had been under the employment and in business for the appellee; that when he was requested to sign the surety bond in suit he declined to do so, stating that his son had been with the company long enough if he had made good to have a credit of his own; and that if he had not made good that he ought to get in some other business, but that the company by its manager informed him that his son had made good and it [683] was not a question of credit, but a custom of the corporation to require bonds of all its employees or salesmen regardless of credit; and that he signed the instrument under the belief that said statements were true; that as a matter of fact his son had not made good, but had become indebted under former, contract to the company and had been short in his settlement with the company, which matters were well known to the company and were pot known to appellant; that he would not have signed the bond if he had been correctly informed by appellee as to said matters. The testimony shows on both sides that Paul Wynnegar, the soil, and principal in the surety bond, was at the time in default under another bond, and that the company knew of this fact. The bond in suit, or “letter of credit” as it is called, is dated January 9,' 1911, and was sighed by the principal, Paul Wynnegar, January 13, 1911. On this testimony the trial judge- granted a peremptory instruction for the appellee, and verdict and judgment thereon was entered for three hundred dollars with interest thereon, from which judgment this appeal is prosecuted. The cause was before this court, on a former appeal on a peremptory instruction in favor of the appellant and „was reversed. Southwestern Co. v. Wynnegar, 111 Miss. 412, 71 So. 737. We think it was error for the court to grant a peremptory instuction in the- present case. There was such conflict in the evidence as to both pleas interposed as to make it a question for the jury under proper instructions. Frazer v. Gervais, Walk. 72; Planter’s Bank v. Neely, 7 How. 80, 40 Am. Dec. 51; 1 R. C. L. 978; Oakey v. Wilcox, 3 How. 330. If the testimony of the appellant is taken as true with all reasonable inferences to be drawn therefrom, the jury might properly find a verdict for the appellant upon either issue The alteration claimed was material, as it affected the rights of both parties [684] to the contract. 1 R. C. L. 978. The judgment is, accordingly, reversed, and the cause remanded for a new trial. Reversed and remanded.