British Amer. Assur. Co. v. Nell

• Decision Date: 24 January 1889
• Citation: 41 N.W. 382,76 Iowa 645
• Parties: BRITISH AMER. ASSUR. CO. v. NELL ET AL.
• Court: Iowa Supreme Court

76 Iowa 645

41 N.W. 382

BRITISH AMER. ASSUR. CO.

v.NELL ET AL.

Supreme Court of Iowa.

Jan. 24, 1889.

Appeal from district court, Marshall county; S. M. WEAVER, Judge.

Action upon a bond given by defendant Neil and his sureties, the other defendants, to secure the proper performance of his duties and obligations as an agent of plaintiff, and the payment of all sums of money received by him for plaintiff. One of the points of contention was as to the liability of the sureties on account of a county warrant for $75, taken by the agent for a premium, which the company refused to accept, and which the agent pledged for a loan of $50 to himself. Afterwards on the termination of the agency the company redeemed the warrant, collected it, and credited the agent with $25. The cause was tried without a jury, and upon findings of facts and law a judgment was rendered for plaintiff. Defendants appeal.J M. Parker, for appellants.

W. W. Miller, for appellee.

BECK, J., ( after stating the facts substantially as above.)

1. The facts as found by the district court are these: The defendant Neil, having for several years been agent for plaintiff, with the other defendants executed the bond in suit to secure the correct discharge of his duties as agent. Prior to the execution of the bond Neil had given plaintiff another bond for the same purpose as the present bond. Prior to the execution of the bond in suit, Neil had issued policies, collecting a part of the premiums, and a part remaining unpaid. It was in accord with the custom of the business to give customers credit until the first of the month following the issuance of their policies. Neil continued business after the bond was given, and received moneys, for which he failed to account, though remitting for a part of the business. The district court held that the plaintiff could not apply remittances made by Neil for business done before the first day of the month in which the bond was executed to arrearages for business done before that date, except that money collected after that date on account of business of the preceding month should be applied to such arrearages; that is, the sureties are only bound to make good Neil's default as to liabilities and defaults for and on account of business beginning with the first of the month in which the bond was executed; they cannot be held for past defaults and arrearages. In our opinion these rules of law are correct. The defendants ought to be charged with the business for the whole of the month in which the bond was given, for the reason that under the customs of the business the money was not due therefor until the first day of the next month. The business was really of the month succeeding the month in which the bond was executed. It was then completed, and the money was due therefor.

2. The first and second findings of facts are complained of as being immaterial and irrelevant, and not predicated upon...