Baer v. Fidelity & Deposit Co. of Maryland

• Decision Date: 08 March 1904
• Docket Number: 1,275.
• Citation: 130 F. 94
• Parties: BAER v. FIDELITY & DEPOSIT CO. OF MARYLAND
• Court: U.S. Court of Appeals — Fifth Circuit

130 F. 94

BAER v. FIDELITY & DEPOSIT CO. OF MARYLAND

No. 1,275.

United States Court of Appeals, Fifth Circuit.

March 8, 1904

This suit was commenced February 1, 1902, in the circuit court of Duval county, state of Florida, by filing the following:

'Declaration.

'In the Circuit Court, Fourth Judicial Circuit, in and for Duval County, Fla.

'George J. Baer, Plaintiff, v. Fidelity & Deposit Company of Maryland, Defendant.

'The plaintiff, George J. Baer, by his attorneys, sued the defendant, Fidelity & Deposit Company of Maryland, which is now, and was at the time of each of the several acts and things hereinafter mentioned, a corporation organized and existing under and by virtue of the laws of the state of Maryland, and duly authorized, in accordance with the laws of Florida, to do business as a surety company in Florida, for that the said defendant, by its certain writing obligatory, under its corporate seal, bearing date the 10th day of March, 1900, became bound unto the said plaintiff in the sum of five thousand dollars, subject to a condition that if the said defendant should well and truly pay to said plaintiff all such damages as the court might determine he might have already or might thereafter sustain by reason of his depositing the sum of forty-five thousand dollars in the National Bank of Jacksonville, to abide the decree of the Circuit Court of the United States for the Southern District of Florida, in a certain cause in said court then pending, wherein William R. Kerr, George W. Allen, Albert S. Laflin, and John O. Laflin were plaintiffs, and this said plaintiff was defendant, and giving bond in the further sum of fifteen thousand dollars in accordance with the order of said court in said cause, then the said obligation to be null and void, otherwise to remain in full force and virtue; and the said sum of forty-five thousand dollars was by this plaintiff deposited in the National Bank of Jacksonville, to abode the decree of the Circuit Court of the United States for the Southern District of Florida in the certain cause in said condition specified; and this plaintiff did give bond, executed by said defendant as surety, in the further sum of fifteen thousand dollars, in accordance with the order of said court in said cause in said condition specified; and by the final decree in said cause, said complainants were allowed and decreed but the sum of thirty-four thousand eighty-eight dollars and forty-nine cents ($34,088.49); and that heretofore, to wit, on the 18th day of August, 1899, the sum of, to wit, twenty-five dollars, became due the plaintiff for a sum of money expended by the plaintiff for the services of his solicitor in and about the preparation of the certain bond, in the sum of fifteen thousand dollars, in the condition of said writing obligatory mentioned, and the same remains due and unpaid to this plaintiff, although payment thereof has often been requested of the defendant. And for a second breach of the said condition, this plaintiff says that heretofore, on, to wit, the 18th day of August, 1899, the sum of, to wit, seventy-five dollars, became due the plaintiff for a sum first installment of the premium, to procure said company to become a surety upon the said bond in the sum of fifteen thousand dollars mentioned in the condition contained in said writing obligatory above set forth; and the same remains due and unpaid to this plaintiff, although payment thereof has often been requested of defendant. And for a third breach of the said condition, this plaintiff says that heretofore, on, to wit, the 18th day of August, 1900, there became due the plaintiff the sum of, to wit, seventy-five dollars, for a sum of money expended by the plaintiff and paid to said surety company as a second installment of the premium to procure said company to become a surety upon the said bond in the sum of fifteen thousand dollars mentioned in the condition contained in said writing obligatory above set forth, and the same remains unpaid to said plaintiff, although payment thereof has often been requested of said defendant. And for a fourth breach of the said conditions, this plaintiff says that heretofore, on, to wit, the 1st day of February, 1902, there became due the plaintiff for interest and damages suffered by the detention and deprivation of moneys of the plaintiff, to wit, ten thousand nine hundred and eleven dollars and fifty-one cents of said sum of forty-five thousand dollars so as aforesaid deposited in the National Bank of Jacksonville, to which complainants were decreed not to be entitled, from, to wit, the 5th day of June, 1899, until, ti wit, the 1st day of February, 1902, the sum of, to wit, three thousand dollars, and that the same remains unpaid to this said defendant. And for a fifth breach of said condition, this plaintiff says that heretofore, on, to wit, the 1st day of February, 1902, there became due the plaintiff for money expended by him in payment of the costs of the clerk of the said court, upon the receiving, keeping, and paying out of moneys of the plaintiff, to wit, ten thousand nine hundred and eleven dollars and fifty-one cents of said sum of forty-five thousand dollars so as aforesaid deposited in the National Bank of Jacksonville, to which complainants were decreed not to be entitled, the sum of, to wit, twenty-seven and 28/100 dollars, and the same remains unpaid to this plaintiff, although payment thereof has often been requested of said defendant. And for a sixth breach of said condition, this plaintiff says that heretofore, to wit, on the 1st day of February, 1902, there became due the plaintiff the sum of, to wit, twenty-five dollars, which sum this plaintiff became liable to pay for the services of his solicitor in attending the execution of the final decree of the court in said cause, distributing the said forty-five thousand dollars so as aforesaid deposited in the National Bank of Jacksonville. And the plaintiff demands five thousand dollars damages.'

A copy of the bond sued on is as follows, to wit:

'In...