{ "id": 8600826, "name": "L. B. PERRY v. SOUTHERN SURETY COMPANY", "name_abbreviation": "Perry v. Southern Surety Co.", "decision_date": "1925-10-14", "docket_number": "", "first_page": "284", "last_page": "292", "citations": [ { "type": "official", "cite": "190 N.C. 284" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "184 N. C., 363", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270496 ], "opinion_index": 0, "case_paths": [ "/nc/184/0363-01" ] }, { "cite": "117 N. C., 73", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652458 ], "opinion_index": 0, "case_paths": [ "/nc/117/0073-01" ] }, { "cite": "140 N. C., 422", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652223 ], "opinion_index": 0, "case_paths": [ "/nc/140/0422-01" ] }, { "cite": "95 N. C., 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273604 ], "opinion_index": 0, "case_paths": [ "/nc/95/0215-01" ] }, { "cite": "170 N. C., 505", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660543 ], "opinion_index": 0, "case_paths": [ "/nc/170/0505-01" ] }, { "cite": "115 N. C., 553", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652403 ], "opinion_index": 0, "case_paths": [ "/nc/115/0553-01" ] }, { "cite": "183 N. C., 517", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657075 ], "opinion_index": 0, "case_paths": [ "/nc/183/0517-01" ] }, { "cite": "182 N. C., 398", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656020 ], "opinion_index": 0, "case_paths": [ "/nc/182/0398-01" ] }, { "cite": "174 N. C., 382", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11254024 ], "opinion_index": 0, "case_paths": [ "/nc/174/0382-01" ] }, { "cite": "173 N. C., 49", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11268795 ], "opinion_index": 0, "case_paths": [ "/nc/173/0049-01" ] }, { "cite": "175 N. C., 694", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661633 ], "opinion_index": 0, "case_paths": [ "/nc/175/0694-01" ] }, { "cite": "184 N. C., 324", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270326 ], "opinion_index": 0, "case_paths": [ "/nc/184/0324-01" ] }, { "cite": "128 N. C., 44", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "170 N. C., 228", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "167 N. C., 632", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273755 ], "opinion_index": 0, "case_paths": [ "/nc/167/0632-01" ] }, { "cite": "126 N. C., 244", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "45 N. C., 88", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684306 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/45/0088-01" ] }, { "cite": "139 N. C., 135", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652203 ], "opinion_index": 0, "case_paths": [ "/nc/139/0135-01" ] }, { "cite": "87 N. C., 49", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8684292 ], "opinion_index": 0, "case_paths": [ "/nc/87/0049-01" ] }, { "cite": "150 N. C., 385", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271230 ], "opinion_index": 0, "case_paths": [ "/nc/150/0385-01" ] }, { "cite": "154 N. C., 228", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652056 ], "opinion_index": 0, "case_paths": [ "/nc/154/0228-01" ] }, { "cite": "165 N. C., 338", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658907 ], "opinion_index": 0, "case_paths": [ "/nc/165/0338-01" ] }, { "cite": "166 N. C., 563", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270556 ], "opinion_index": 0, "case_paths": [ "/nc/166/0563-01" ] }, { "cite": "167 N. C., 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272225 ], "opinion_index": 0, "case_paths": [ "/nc/167/0271-01" ] }, { "cite": "170 N. C., 456", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8660047 ], "opinion_index": 0, "case_paths": [ "/nc/170/0456-01" ] }, { "cite": "171 N. C., 559", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11271487 ], "opinion_index": 0, "case_paths": [ "/nc/171/0559-01" ] }, { "cite": "186 Pa. St., 294", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 989732 ], "opinion_index": 0, "case_paths": [ "/pa/186/0294-01" ] }, { "cite": "112 Pac., 8", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 4456054 ], "opinion_index": 0, "case_paths": [ "/or/57/0338-01" ] }, { "cite": "153 Pac., 158", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 8883752 ], "opinion_index": 0, "case_paths": [ "/okla/49/0486-01" ] }, { "cite": "115 Pac., 466", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 8881817 ], "opinion_index": 0, "case_paths": [ "/okla/28/0585-01" ] }, { "cite": "244 Ill., 532", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3411470 ], "opinion_index": 0, "case_paths": [ "/ill/244/0532-01" ] }, { "cite": "71 Ky., 687", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 6056698 ], "opinion_index": 0, "case_paths": [ "/ky/71/0687-01" ] }, { "cite": "22 Mich., 377", "category": "reporters:state", "reporter": "Mich.", "case_ids": [ 1314165 ], "opinion_index": 0, "case_paths": [ "/mich/22/0377-01" ] }, { "cite": "148 N. C., 535", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270854 ], "opinion_index": 0, "case_paths": [ "/nc/148/0535-01" ] }, { "cite": "177 N. C., 14", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653521 ], "opinion_index": 0, "case_paths": [ "/nc/177/0014-01" ] }, { "cite": "65 N. C., 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955315 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/65/0520-01" ] }, { "cite": "123 N. C., 170", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658139 ], "opinion_index": 0, "case_paths": [ "/nc/123/0170-01" ] }, { "cite": "5 N. C., 116", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12187755, 11275588 ], "opinion_index": 0, "case_paths": [ "/nc/5/0116-01", "/nc/5/0116-01" ] }, { "cite": "1916 B, 144", "category": "reporters:state", "reporter": "Barb.", "opinion_index": 0 }, { "cite": "37 L. R. A. (N. S.), 525", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "154 N. C., 596", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653063 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nc/154/0596-01" ] }, { "cite": "26 Ky., 353", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 8520242 ], "opinion_index": 0, "case_paths": [ "/ky/26/0353-01" ] }, { "cite": "1916 B, 55", "category": "reporters:state", "reporter": "Barb.", "opinion_index": 0 }, { "cite": "93 Iowa, 258", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 8647304 ], "opinion_index": 0, "case_paths": [ "/iowa/93/0258-01" ] }, { "cite": "141 Iowa, 492", "category": "reporters:state", "reporter": "Iowa", "case_ids": [ 2161311 ], "opinion_index": 0, "case_paths": [ "/iowa/141/0492-01" ] }, { "cite": "174 N. C., 394", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "80 N. C., 224", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8689529 ], "opinion_index": 0, "case_paths": [ "/nc/80/0224-01" ] }, { "cite": "130 N. C., 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11274171 ], "opinion_index": 0, "case_paths": [ "/nc/130/0554-01" ] }, { "cite": "177 N. C., 304", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "150 N. C., 222", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270486 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/150/0222-01" ] }, { "cite": "180 N. C., 472", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653889 ], "opinion_index": 0, "case_paths": [ "/nc/180/0472-01" ] }, { "cite": "173 N. C., 229", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269624 ], "opinion_index": 0, "case_paths": [ "/nc/173/0229-01" ] }, { "cite": "140 N. C., 520", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "178 N. C., 4", "category": "reporters:state", "reporter": "N.C.", "weight": 2, "opinion_index": 0 }, { "cite": "118 N. C., 739", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "144 N. C., 241", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "67 N. C., 448", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 1010, "char_count": 21654, "ocr_confidence": 0.465, "pagerank": { "raw": 5.880212624698628e-07, "percentile": 0.9524916317515036 }, "sha256": "48d21c708a0f1add14fa12e16d0330331858695cfeb7e71716ce8f3865b90614", "simhash": "1:8a5c65d92231362e", "word_count": 3693 }, "last_updated": "2023-07-14T22:38:29.672014+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "L. B. PERRY v. SOUTHERN SURETY COMPANY." ], "opinions": [ { "text": "Yasser, J.\nThe defendant is not entitled to reform the contract and the deed for the Wineke Apartment property on the evidence. There is no evidence to support either the allegations of mutual mistake, inadvertence, or fraud. The defendant\u2019s witness, Butler, testified that he read the contract of 11 September, 1923; that a mortgage on the Wineke Apartment property was discussed, but a deed was finally written and recorded. The parties knew the contents of the contract and deed. Nothing was done to prevent a full understanding. Parties are required to exercise ordinary i diligence in executing contracts, and they are fixed with all knowledge that diligence would have disclosed. School Committee v. Kesler, 67 N. C., 448; Floars v. Ins. Co., 144 N. C., 241; Dellinger v. Gillespie, 118 N. C., 739; Newbern v. Newbern, 178 N. C., 4; Griffin v. Lumber Co., 140 N. C., 520; Harvester Co. v. Carter, 173 N. C., 229; Colt v. Kimball, ante, 169.\nIt is also settled, in this jurisdiction, now, that a deed absolute upon its face cannot be converted into a mortgage unless it shall be established that the clause of defeasance was omitted by ignorance, mistake, fraud, or undue influence. Chilton v. Smith, 180 N. C., 472; Gaylord v. Gaylord, 150 N. C., 222; Williamson v. Rabon, 177 N. C., 304. This latter case overrules Fuller v. Jenkins, 130 N. C., 554. It is well settled that parol trusts cannot arise between the parties to a deed. Gaylord v. Gaylord, supra; Bonham v. Craig, 80 N. C., 224; Newton v. Clark, 174 N. C., 394; Newbern v. Newbern, supra.\nThese holdings do not, however, affect the main question in the case at bar.\nThe defendant contends that the contract of 1 July, 1922 (which consists of the plaintiff\u2019s application for bond accepted by defendant, and the indemnity bond to secure the owner of the buildings against the plaintiff\u2019s default in his building contract), creates such a relation between plaintiff and defendant that -all subsequent transactions are, as a matter of law, a security. The defendant on 1 July, 1922, solemnly covenanted with defendant that his execution of \u201cany other instrument, whether relative to the bond hereby applied for, or to any other, former or subsequent bonds executed for us, or at our request, shall not release us from liability under the foregoing covenants, unless such other instrument shall expressly stipulate that we shall be released from such liability.\u201d These \u201cforegoing covenants\u201d undertake, with much particularity, to provide for a continuing obligation to save the defendant harmless on account of its suretyship and it assigns all rights of plaintiff in \u201call tools, plant equipment and materials of every nature and description\u201d that plaintiff may have, for use in and about the work, both on hand, in storage, or in transportation, as well as an assignment of all moneys \u201cdue or to become due,\u201d as provided in the building contract, with full power of attorney to execute all necessary papers to accomplish the desired result, to wit, the complete indemnity of defendant from loss.\nTbe agreement of 11 September, 1923, on wbicb plaintiff bases bis action, refers to tbe transactions of 1 July, 1922, and tbe plaintiff\u2019s present need of financial assistance \u201cfor tbe purpose of completing tbe buildings\u201d as contracted for, \u201cwbicb finances tbe Southern Surety Company bas agreed to supply,\u201d as therein set out, and recites that tbe said Perry is desirous of saving said Southern Surety Company harmless, and does not stipulate that plaintiff is.released from tbe liability on bis covenants in tbe application for bond.\nTbe consideration is thus recited: \u201cIn consideration of tbe mutual benefits to be derived.\u201d Tbe conveyance of tbe Wineke Apartment property is one of tbe things to be done by plaintiff in consideration of tbe recited desire to save tbe defendant harmless, and tbe stipulation provides that it shall be conveyed by \u201cproper deed.\u201d\nThere is no legal obstacle presented by tbe encumbrance on tbe Wineke Apartment property. Tbe assumption of, and payment of this mortgage, by defendant, is only another item in tbe final accounting. Veeder v. Veeder, 141 Iowa, 492; Dunton v. McCook, 93 Iowa, 258.\nWe are minded to bold that, upon tbe contract of 1 July, 1922, and tbe agreement of 11 September, 1923, and tbe deed to defendant for tbe Wineke Apartment property, on same date, wbicb deed is an express part of this agreement, that tbe whole transaction constitutes itself into that of \u201cadvancement and security,\u201d and debtor and creditor. Tbe same rule that prevents defendant in its effort to reform tbe contract and deed of 11 September, 1923, bolds tbe plaintiff to tbe performance of tbe covenants of 1 July, 1922.\nWhenever a transaction resolves itself into a security, whatever may be its form, and whatever name tbe parties may eb'oose to give it, it is, in equity, a mortgage. Hames v. Williams, 92 Maine, 483; L. R. A., 1916 B, 55 note, even if on its face, it may be a deed. Edrington v. Harper, 26 Ky., 353.\nThere are no special words required to constitute a mortgage. Tbe test is whether tbe conveyance, or tbe whole transaction, is a security for tbe payment of money, or tbe performance of any act or thing. Sandlin v. Kearney, 154 N. C., 596; 37 L. R. A. (N. S.), 525, note; L. R. A., 1916 B, 144, note, 287, note.\nIn Sandlin v. Kearney, supra, tbe material facts were admitted in tbe pleadings, and in tbe case at bar, tbe admitted written instruments show tbe intention to create a security. Tbe three written instruments, though executed on two different dates, are so linked together by express references and evident intention, that it is conclusive that they constitute only one transaction. 19 R. C. L., 244, sec. 7, 246 sec. 9; Wilcox v. Morris, 5 N. C., 116. Tbe conveyance was intended to indemnify tbe grantee, the defendant, for the assumption of some outstanding obligations of the plaintiff related to the subject-matter of the original contract. Therefore, it is security. Watkins v. Williams, 123 N. C., 170; Robinson v. Willoughby, 65 N. C., 520; Noland v. Osborne, 177 N. C., 14; Russell v. Southard, 13 L. Ed. (U. S.), 927. The recitals in the agreement of 11 September, 1923, have the same effect, inter partes, as recitals in the deed itself. A deed which recites that it is security for a debt is a mortgage. Devlin on Real Estate (3 ed.) Vol. 2, sec. 1125; Wilson v. Fisher, 148 N. C., 535.\nEquity will, in doubtful cases, construe the transaction to be a security and not a sale, because this subserves the ends of justice and prevents imposition. If the idea of security appears with reasonable distinctness by the writings and no evil practice or mistake appear, courts will incline so to regard it, because the general rule which favors written evidence concurs with the reasons of justice. Cornell v. Hall, 22 Mich., 377; Honore v. Hutchings, 71 Ky., 687. When two or more papers are executed by the same parties at the same time, or at different times, and show on their face that each was executed to carry out the common intent, they should be construed together. Chicago Auditorium Assn. v. Corporation of Fine Arts Bldg., 244 Ill., 532; 18 Ann. Cas., 253; Canadian Coal Co. v. Lynch, 115 Pac., 466; Brake v. Blain, 153 Pac., 158; Longfellow v. Huffman, 57 Org., 338, 112 Pac., 8; Parker v. Supply Co., 186 Pa. St., 294, 40 Atlantic, 518.\nIt is proper, in the interpretation of a written contract, to consider all the attendant circumstances, the relation of the parties, and the object it had in view. Bank v. Redwine, 171 N. C., 559; McMahan v. R. R., 170 N. C., 456; Simmons v. Groom, 167 N. C., 271; Neal v. Ferry Co., 166 N. C., 563; Slocumb v. R. R., 165 N. C., 338; Hornthal v. Howcott, 154 N. C., 228; Hardy v. Ward, 150 N. C., 385; Fowle v. Kerchner, 87 N. C., 49.\nRegarding these rules and construing the application executed by plaintiff to the defendant 1 July, 1922, and the agreement of 11 September, 1923, and the Wineke Apartment deed together, and being fully conscious of the common intent of the parties, we hold that the dealings between the plaintiff and the defendant, thus evidenced, constitute an advancement on the part of the defendant, and a security therefor on the part of the plaintiff. Bunn v. Braswell, 139 N. C., 135; Watkins v. Williams, supra; Robinson v. Willoughby, 65 N. C., 520; Sandlin v. Kearney, supra; Mason v. Hearne, 45 N. C., 88; Cheek v. B. & L. Association, 126 N. C., 244; Lutz v. Hoyle, 167 N. C., 632; Ray v. Patterson, 170 N. C., 228; citing Robinson v. Willoughby, supra; Mason v. Hearne, supra; Porter v. White, 128 N. C., 44. This latter case is an apt illustration of tbe instant case; the doctrine of reformation was denied, but, construing the papers together, the same result was reached.\nOur ruling approves the judgment rendered by the court below, and if its rulings challenged by plaintiff\u2019s exceptions are erroneous, and its judgment is correct, it will not be disturbed.\nWe do not presume prejudicial error and the burden is upon the appellant to show, not only error, but that it is prejudicial. The judgment will be affirmed if, upon the entire record, no substantial right to the appellant has been denied', and, even if irregular, when the correct result has been accomplished. The appellant is -not, upon any view of the record, entitled to recover. Blevins v. R. R., 184 N. C., 324; Quelch v. Futch, 175 N. C., 694; Mercer v. Lumber Co., 173 N. C., 49; Oil Co. v. Burney, 174 N. C., 382; In re Will of Edens, 182 N. C., 398; Rankin v. Oates, 183 N. C., 517; Lindsey v. Bank, 115 N. C., 553; Ewbank v. Lyman, 170 N. C., 505; Butts v. Screws, 95 N. C., 215; Cherry v. Canal Co., 140 N. C., 422; Shackelford v. Staton, 117 N. C., 73; Rierson v. Iron Co., 184 N. C., 363.\nThe right result having been reached in the court below, we conclude that there is\nNo error.", "type": "majority", "author": "Yasser, J." } ], "attorneys": [ "Aydlett & Simpson, McMullan & LeJRoy for plaintiff..", "W. L. Small, Ehringhaus & Sail for defendant." ], "corrections": "", "head_matter": "L. B. PERRY v. SOUTHERN SURETY COMPANY.\n(Filed 14 October, 1925.)\n1. Equity \u2014 Deeds and Conveyances \u2014 Reformation\u2014Evidence.\nEquity will not reform a deed into a mortgage for mistake upon evidence tending only to show that after considering the matter, the parties intended the instrument to be a deed, as it was finally written.\n2. Same \u2014 Principal and Surety \u2014 Contracts.\nWhere the surety on a contractor\u2019s bond and the contractor have agreed that the contractor will save the surety harmless on account of any default under his contract with whatever property he may have in the way of tools, appliances and materials on hand, and thereafter under a separate agreement expressly referring to the original surety contract, the contractor conveys certain of his realty encumbered by a mortgage, the transactions will be construed together in their entirety to effectuate the intent of the parties, and accordingly the deed will be given effect as a mortgage security under the original contract of surety, and not an absolute conveyance.\n3. Appeal and Error \u2014 Burden of Proof \u2014 Harmless Error.\n\u25a0On appeal to tlie Supreme Court, the burden is on the appellant not only to show error, but that it was prejudicial; and where there has been error committed in the court below, a reversal will not be had when upon the record it properly appears that a correct result has been reached, as a conclusion of law.\nAppeal by plaintiff from PasquotaNK Superior Court. Granmer, J.\nAction by plaintiff to recover on a contract by defendant to complete plaintiff\u2019s building contract with Board of Graded School Trustees of Elizabeth City. Prom a judgment in favor of defendant, upon a jury verdict, the plaintiff appealed.\nAffirmed.\nThe plaintiff contended that he had a contract to build two school buildings for the Board of Trustees of Elizabeth City, and that on or about 1 July, 1922, he gave, with defendant as surety, a bond to \u201csave said board harmless as to plaintiff\u2019s due and proper execution of said work\u201d; that in August, 1923, he was in need of financial assistance to complete the high school building, and made application to the trustees to reduce the amount of the compensation agreed to be retained1 until the completion of the contract, to 10 per cent, with defendant\u2019s consent ; but the trustees refused, for that they did not have the money on hand to make the desired advances. The plaintiff and defendant agreed, 11 September, 1923: (a) that plaintiff transfer and assign and set over to defendant all unpaid balances on building contract; (b) that plaintiff remain in charge of the construction work until completion of contract, without further charge for his services; (c) that plaintiff convey to defendant the Wineke Apartment property in Elizabeth City; (d) that plaintiff pay by his personal note $6,000 on specified claims already due; (e) that defendant pay all other labor and material accounts now due, as per statement, and all labor and material accounts accruing thereafter in the completion of the buildings; (f) that defendant is to\u00a1 keep in a named bank in Elizabeth City funds sufficient to pay for labor and material to complete the buildings, same to be deposited in the name of plaintiff trustee, and checks to be countersigned by defendant\u2019s attorney in fact, and checks to be issued on deposited fund for statements approved by plaintiff, who, by such approval, guarantees correctness; (g) that, at conclusion of contract for construction of buildings, the defendant render itemized statement to plaintiff for all disbursements, including attorney\u2019s fees; that the defendant furnished funds for material and work on buildings to the extent of $33,000, but wrongfully refused to continue to carry out the September contract,' and did not pay the accounts agreed on, and damaged the plaintiff to the extent of the unperformed contract and caused his credit and business reputation to suffer damages in a large sum.\nTbe defendant contended tbat, in July, 1922, its relations witb plaintiff were fixed when it accepted tbe written application of plaintiff, and, upon it, executed bis bond as surety, and tbat tbe subsequent agreement was pursuant to tbis relation, and tbat they advanced funds and took a deed for tbe \"Wmefee Apartment property, and tbe assignment of tbe unpaid balance of tbe contract price, because of tbe duty of plaintiff to secure it, and finally to save defendant harmless on account of tbe suretyship, and denied plaintiff\u2019s contentions.\nTbe application executed and admitted by plaintiff, contains among others, tbe following covenants:\n\u201cSecond: Tbat we, tbe, undersigned, will at all times indemnify and keep indemnified tbe company, and bold and save it harmless from and against any and all liability, damages, loss, costs, charges and expenses of whatsoever kind or nature, including counsel and attorney\u2019s fees, which tbe company shall or may, at any time, sustain or incur by reason or in consequence of having executed tbe bond herein applied for, or by reason or in consequence of tbe execution by tbe company of any afid all other bonds executed for us at our instance and request, and tbat we will pay over, reimburse and make good to tbe company, its successors and assigns, all sums and amounts of money which tbe company or its representatives shall pay or cause to be paid or become liable to pay, on account of tbe execution of any such instrument, and on account of any liability, damage, costs, charges and expenses of whatsoever kind or nature,' including counsel and attorney\u2019s fees, which tbe company may pay, or become liable to pay by reason of tbe execution of any such instrument, or in connection witb any litigation, investigation, or other matter connected therewith, such payment to be made to tbe company as soon as it shall have become liable therefor, whether tbe company shall have paid out said sum or any part thereof or not.\n\u201cSeventh: Tbat these covenants and also all collateral security, if any, at any time deposited witb tbe company concerning tbe said bond, or any other, former or subsequent bonds executed for us or at our instance, shall, at tbe option of tbe company be available in its behalf and for its benefit as well concerning tbe bond or undertaking hereby applied for, as also concerning all other former or subsequent bonds and undertakings executed for us or for others at our request.\n\u201cEighth: Tbat our execution of any other instrument, whether relative to tbe bond hereby applied for or to any other, former or subsequent bonds executed for us or at our request, shall not release us from liability under the foregoing covenants, unless such other instruments shall expressly stipulate that we shall be released from such liability.\n\u201cEleventh: That the suretyship is for the special benefit of the in-demnitor, its property, income and earnings now owned or hereafter acquired, to which the company looks for its indemnity, and the in-demnitors represent that it is specifically and beneficially interested therein.\n\u201cTwelfth: That the company shall have every right and remedy which a personal surety without compensation would have, including the right to secure its discharge from its suretyship, and should it make payment hereunder, shall have every right and remedy of the undersigned for the recovery of same.\u201d\nIt is also covenanted that the defendant may have access to all books and papers, including deposit accounts, and that \u201cthese covenants shall be binding not only upon us jointly and severally, but as well upon our heirs, executors, administrators, successors and assigns.\u201d\nThe verdict is as follows:\n\u201c1. Did the plaintiff, Perry, and the defendant, Southern Surety Company, make and enter into that certain agreement of 11 September, 1923, a copy of which is attached to the complaint, as alleged in the complaint? Answer: Yes.\n\u201c2. If so, was \u00e1 provision requiring the plaintiff, Perry, to repay the defendant company all such amounts as said company should pay out under the terms of said agreement, omitted therefrom by the mutual mistake of the parties, the inadvertence of said parties, or the draftsman (or the mistake of the defendant company, induced by the fraud of the plaintiff, Perry, as alleged in the answer) ? Answer: Yes.\n\u201c3. Was said Perry ready, able and willing to perform said contract as alleged in the complaint? Answer: Yes.\n\u201c4. If so, was a provision permitting said Perry to redeem said-property, upon the payment to defendant company of all amounts paid out by them under said agreement, omitted from said deed by the mutual mistake of the parties, or the inadventence of said parties or the draftsman (or the mistake of the defendant company, induced by the fraud of the plaintiff, Perry, as alleged in the answer) ? Answer: Yes.\n\u201c5. Did the defendant company wrongfully breach said contract, as alleged in the complaint ? Answer: No.\n\u201c6. What general damages, if any, is the plaintiff, Perry, entitled to recover of the defendant company? Answer: None.\n\u201c7. What sum, if any, is the defendant company entitled to recover of the plaintiff, Perry? Answer: $15,000.\u201d\nThe judgment provides:\n\u201cThat plaintiff take nothing by his cause of action set up in the complaint; that the contract and agreement and deed between the plaintiff and defendant be and tbe same are hereby reformed in accordance with the findings of the jury as above set out and the allegations of the answer.\n\u201cThat the cause be and the same is hereby referred to E. L. Sawyer as referee, who will hear the evidence and state an account between the parties and ascertain the true amount due by plaintiff to defendant for advances made pursuant to said contract and agreement so reformed as prayed for in the answer, and who will make report to the next term of Superior Court in said county of the amount so found by him to be due by way of accounting from plaintiff to defendant, which sum so found shall be and constitute a lien against the premises known as the Wineke Apartment described in the pleadings in this cause, and also against the balance of funds on deposit in trustee\u2019s account referred to in said pleadings and also against the remainder of the funds on deposit in the office of the clerk of the Superior Court.\n\u201cThat upon payment of said sum so ascertained upon said accounting to be due by plaintiff to defendant the said lien shall be discharged, and that upon failure of plaintiff to pay off and discharge the same, within 80 days from confirmation of said account by the court, said balance in trustee\u2019s account and said balance of funds in the clerk\u2019s hands shall be applied toward the satisfaction of said claim, and the balance of said indebtedness, if any, may be enforced by advertisement and sale of the premises known as the Wineke Apartment after advertisement as provided by law for and in the ease of mortgages and deeds of trust, said sale to be made by the clerk of this court as commissioner of this court, who will be allowed 2 per cent commission not tO' exceed $250 for his services in advertising and conducting said sale, to be deducted from the proceeds along with the costs of advertising and sale, and who will apply the remainder of said proceeds as far as may be necessary to the discharge and satisfaction of the balance so found to be due to defendant as above set forth and pay over the surplus, if any, after so discharging the remainder of said indebtedness t\u00f3 the said L. B. Perry or his assigns.\nThe plaintiff appealed, assigning errors in the admission and rejection of evidence in the charge as to mistake, inadvertence and fraud, and in its refusal to grant plaintiff\u2019s motion to dismiss defendant\u2019s cross-action.\nAydlett & Simpson, McMullan & LeJRoy for plaintiff..\nW. L. Small, Ehringhaus & Sail for defendant." }, "file_name": "0284-01", "first_page_order": 388, "last_page_order": 396 }