American Bonding & Trust Co. of Baltimore City v. Milwaukee Harvester Co.
| Decision Date | 16 November 1900 |
| Citation | 48 A. 72,91 Md. 733 |
| Parties | AMERICAN BONDING & TRUST CO. OF BALTIMORE CITY v. MILWAUKEE HARVESTER CO. |
| Court | Maryland Court of Appeals |
Appeal from superior court of Baltimore city.
"To be officially reported."
Action by the Milwaukee Harvester Company against the American Bonding & Trust Company of Baltimore City. From a judgment for plaintiff, defendant appeals. Affirmed.
Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PEARCE SCHMUCKER, and JONES, JJ.
E.J.D Cross and John L.G. Lee, for appellant.
Gans & Haman and W. Calvin Chestnut, for appellee.
The appellee sued the appellant on a surety bond for losses sustained by the former through Upton S. Brumbaugh in connection with the duties of his position as its general agent. There are two counts in the declaration, but they are similar, excepting as to the dates; the appellant having renewed for a year a bond which it had given for the previous year to "make good and reimburse to" the appellee to the extent of $2,000 such pecuniary loss as it may sustain "by reason of any fraudulent or dishonest acts of the employed in connection with the duties of said position amounting to embezzlement or larceny."
1. The first question presented for our consideration is the ruling of the court below on a demurrer to the declaration, which was overruled. The only ground urged for a reversal for that reason is that the appellant was sued alone on a joint obligation executed by it and Brumbaugh, who is a citizen of this state. It is, of course, necessary to unite all joint obligors in a suit on a bond in which they are only jointly liable, unless the failure to do so is properly accounted for; and, when such omission appears on the face of the declaration, it can be taken advantage of by demurrer. But an examination of the bond, set out in the declaration, fails to disclose any joint obligation of the bonding company and Brumbaugh. It is true, both executed the original bond although the renewal sued on in the second count was only executed by the company, and not by Brumbaugh, but the covenants with the appellee were made by the bonding company alone. The bond provides that the appellant shall be called "the company," Brumbaugh "the employed," and the harvester company "the employer," and after making some recitals, and stating the consideration, it proceeds: "It is hereby covenanted and agreed that the company shall *** make good and reimburse to the employer," etc. Some of the conditions of the bond show that the obligation was on the part of "the company," and Brumbaugh evidently united in it to give his consent to the terms, and to indemnify the bonding company. The concluding paragraph is: "And these presents witness that the employed hereby agrees for himself, his heirs, executors, and administrators, to indemnify the company against any loss or damage it may sustain in consequence of this bond; and forthwith after the company shall have paid the employer *** any money under or by reason of such bond to reimburse the company the amount so paid," etc. It was, therefore, not a joint obligation, and there was no error in this ruling.
2. That on the demurrer to the defendant's second and seventh pleas we do not understand to be questioned in this court and therefore the next point to be considered is the alleged error in not sustaining the demurrer to the plaintiff's replication to the defendant's third plea. That plea alleges that all the moneys collected by Brumbaugh during the term of the bond and the renewal thereof were paid over to the plaintiff, and hence there was no pecuniary loss to it during the term of the bond sued upon. It sets out a list of accounts, showing the names of parties from whom they were collected, the dates and amounts of collections, being in the aggregate $2,814.85, and alleges that each and every item of them was paid over. The plaintiff, by the replication, "denies that the sums of money included in the claim of $2,814.85 as itemized in said plea were paid over to the Milwaukee Harvester Company on the accounts for which it is alleged in said plea they were collected, and hence denies the statement in said plea that there was no pecuniary loss to the plaintiff during the term of said bond; and plaintiff further alleges that there was an actual deficit of $2,814.85 in the accounts of said Brumbaugh during the term of said bond." It was said at the argument that the court below, being of the opinion that it was not raised by this demurrer, did not pass on the question which the appellant intended to present, and only determined that the replication was a proper traverse of the facts alleged in the plea. We might, perhaps, with propriety rest our decision on that ground, but, as the question was fully argued, and we cannot pass on the prayers, which did raise it, because they were not brought before us by a bill of exceptions, although they are in the record, we will, without confining ourselves to the precise language used in the plea and replication, consider the point which was argued under this branch of the case as far as we feel at all justified in doing. Although we cannot, for the reason already given, pass on it, we will use the fifth prayer offered by the defendant as illustrating the position contended for by it. It asked the court to instruct the jury that, if they believed that the agent, Brumbaugh, paid to the plaintiff all the money he collected, including the sum sued for, during the term of the bond and the renewal thereof, then they must find for the defendant, even though they further believe that he directed the company to apply his said payments to accounts other than those from which they were actually collected. The theory of the appellant is that, if all the money was paid, then--First, the plaintiff sustained no loss as contemplated by the bond; and, second, that Brumbaugh's acts did not constitute the crime of embezzlement. This plea did not allege in terms that the acts of Brumbaugh did not amount to embezzlement, but that defense was made by another plea, on which issue was joined. The declaration, however, does specifically charge that Brumbaugh did fraudulently and dishonestly appropriate the sum of $2,814.85 of the money of the plaintiff in such a way as to amount to that crime, and this plea undertook to meet the allegations in the narr. by simply alleging that all the money collected during the term of the bond had been paid over, which was replied to by the plaintiff by the allegations that they were not paid on account of the items set out in the plea. The discussion of this point must, therefore, be narrowed to the inquiry whether the fact that the money collected by the agent was paid to the plaintiff, although on accounts other than those so collected, relieved the agent of embezzlement and the defendant of liability; and, giving the plea the greatest possible latitude, we are not called upon to discuss the many technical defenses that may be interposed on the charge of embezzlement. It is a statutory...
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