Thompson v. American Surety of New York, 8712.

• Decision Date: 18 July 1930
• Docket Number: No. 8712.,8712.
• Citation: 42 F.2d 953
• Parties: THOMPSON v. AMERICAN SURETY CO. OF NEW YORK et al.
• Court: U.S. Court of Appeals — Eighth Circuit

42 F.2d 953 (1930)

THOMPSON v. AMERICAN SURETY CO. OF NEW YORK et al.

No. 8712.

Circuit Court of Appeals, Eighth Circuit.

July 18, 1930.

Henry A. Morgan, of Albert Lea, Minn. (Morgan & Nichols, of Albert Lea, Minn., on the brief), for appellant.

F. N. Furber, of Minneapolis, Minn. (Fowler, Carlson, Furber & Johnson, of Minneapolis, Minn., and Clark, Byers & Brunk, of Des Moines, Iowa, on the brief), for appellees.

Before KENYON, BOOTH, and GARDNER, Circuit Judges.

GARDNER, Circuit Judge.

Appellant, as plaintiff below, brought this action to recover damages, setting up in his complaint four separate alleged causes of action, charging four breaches of the conditions of the bond executed by the defendant Oscar C. Olson as principal and the defendant American Surety Company of New York as surety, by the terms of which the defendants agreed to pay, on conditions set out in the bond, the Citizens' National Bank of Albert Lea, Minn., such pecuniary loss, not exceeding $10,000, as the bank might sustain by reason of certain wrongful acts of the defendant Olson described in the bond. The bond which is made a part of the complaint, contains the following pertinent provisions:

"We, Oscar C. Olson as Principal, hereinafter called the `Employe,' and the American Surety Company of New York, as Surety, bind ourselves to pay Citizens National Bank, Albert Lea, Minnesota, as Employer, such pecuniary loss, not exceeding Ten Thousand Dollars, as the latter shall have sustained of money or other personal property (including that for which the Employer is responsible), by any act or acts of Fraud, Dishonesty, Forgery, Theft, Embezzlement, Wrongful Abstraction or Wilful Misappropriation on the part of the Employe, directly or through connivance with others, while in any position or at any location in the employ of the Employer; this suretyship to begin March 20th, 1918, and to end, (a) with the date of the discovery by the Employer either of loss hereunder or of dishonesty on the part of the Employe, or (b) with the date of the retirement of the Employe from the service of the employer, or (c) with the date of the termination of the suretyship by the Surety or the Employer in the manner hereinafter set forth in clause 7.

"Provided, However,

"1. That loss be discovered during the continuance of this suretyship or within the fifteen months immediately following the termination thereof, and that notice of such loss be delivered to the Surety at its home office in the City of New York within ten days after such discovery.

"2. That claim, if any, be submitted by the Employer in writing, showing the items and the dates of the losses, and be delivered to the Surety at its home office within three months after such discovery, and that the Surety shall have two months after claim has been presented in which to verify and to make payment. In the meantime no suit, action or proceeding shall be brought against the Surety by the Employer, nor after the expiration of twelve months after the delivery of such statement of claims. In any suit, action or proceeding the Employe shall, if with reasonable diligence he can be found within the jurisdiction, be made a party to the suit and served with process therein.

"3. That in no event shall the liability of the Surety for any one or more defaults of the Employe during any one or more years of this suretyship exceed the amount herein specified. * * *

"7. That this suretyship may be terminated by the surety upon thirty days' notice to the Employer, or by the Employer upon notice in writing to the Surety specifying the date of termination. Thereupon the Surety shall refund the unearned premium if no claim has been paid hereunder."

It is alleged in the complaint that the Citizens' National Bank of Albert Lea was a national banking association, with its principal place of business at Albert Lea, Minn., and that during the month of February, 1927, the Comptroller of the Currency, having determined that the bank was insolvent and unable to pay its debts, appointed the plaintiff as receiver, and that he duly qualified as such receiver in February, 1927, and has ever since been acting as such. That during the times in the complaint mentioned, the defendant Oscar C. Olson was in the employ of the bank as its cashier, and that while so employed, on the 29th of September, 1923, he abstracted, willfully misapplied, took, and kept for himself, and omitted and failed to deliver to the bank, the sum of $400 which belonged to the bank. That this loss was first discovered by plaintiff during the month of September, 1927, and thereupon plaintiff gave notice to the defendant surety company, as required by the conditions of the bond; that the loss had not been discovered either by the directors of the bank or by any of its officers. As a second breach of the bond, it is similarly charged that in August, 1925, the defendant Olson, while in the employ of the bank as cashier, abstracted, misapplied, and omitted to account to the bank for $2,500 which rightfully belonged to the bank. As a third cause of action, it is similarly alleged that on or about the 5th of January, 1922, the defendant Olson, while in the employ of the bank as cashier, misappropriated $3,000 of the funds of the bank, and as a fourth cause of action it is similarly charged that in the month of October, 1923, the defendant Olson, while in the employ of the bank as cashier, misapplied and appropriated $2,500 of the funds of the bank. It is alleged as to each of these losses that discovery was not made until after the expiration of fifteen months from the termination of the bond; that up to the time of the discovery by the plaintiff these losses had not been discovered either by the directors or officers of the bank, aside from the defendant Olson. To the complaint, and each of the causes of action thereof, the defendants interposed separate demurrers, challenging the sufficiency of the allegations to constitute a cause of action. These demurrers were sustained, and judgment of dismissal was entered thereon, and from this judgment plaintiff has appealed.

It is alleged in the complaint that the bond was continued "in full force and effect continuously from the date thereof until March 20th, 1926, at twelve o'clock noon." By specific provisions...