Chicago Portrait Co. v. Maddox
| Decision Date | 23 December 1916 |
| Citation | 112 Miss. 434,73 So. 278 |
| Court | Mississippi Supreme Court |
| Parties | CHICAGO PORTRAIT CO. v. MADDOX |
October 1916
APPEAL from the circuit court of Lincoln county, HON. J. B. HOLDEN Judge.
Suit by the Chicago Portrait Company against J. W. Maddox and others. From a judgment for defendant, plaintiff appeals.
The facts are fully stated in the opinion of the court.
Reversed and remanded.
Brady & Dean, for appellee.
Appellant, knowing as does this court, the legal learning and ability of appellees' counsel, is constrained to believe that the cases cited on page 5 of appellee's brief in support of their man of straw were not read before being inserted, for the rules therein announced fit absolutely appellant's contention on this record. We cite: "That sureties upon a bond given by an employee to his employer, conditioned that the former will faithfully account for all moneys and property of the latter coming in to his hands, are not discharged from subsequent liability by an omission on the part of the employer to notify them of a default on the part of their principal known to the employer, and a continuance of the employment after such default, in the absence of evidence of fraud and dishonesty on the part of the employee." 21 Am. Rep. 321.
The evidence of fraud and dishonesty is patently absent from this record. The agent of a corporation, being under bond to account and pay over daily, cannot be trusted with more money at his surety's risk after dishonesty of the agent is discovered by the corporation. But he may be so trusted so long as the circumstances, fairly interpreted point, not to moral turpitude, but to want of diligence or punctuality rather than to want of integrity." 27 Am. Rep. 402.
Here there is no evidence of dishonesty, and any interpretation of circumstances is for the jury and not the court. To the same effect is 10 So. 539.
The argument with reference to application of credits beginning on page 5 of appellee's brief has been somewhat anticipated on page 3 herein.
Appellees have taken a stated principle of law, knocked an "if" from in front of it, then stretched the facts of this record to meet their new-born proposition. 32 Cyc. 172 says: "IF" neither the creditor nor the principal has made any application of a payment made by the latter, and their transaction afterward become a matter of judicial adjustment, the court will apply the payment as equity seems to require, usually to the oldest item, unless the conduct of the parties indicates the payments by the principal were to be credited to later items. In some cases application will be made ratably among different debts."
This is widely different from "The rule as to the application of payments is left largely to the discretion of the trial court to be applied according to the equity and justice of the case," as is laid down on page 6 of appellee's brief.
The cases cited all have to do with credits on one account, or with limitation, or with principles even further afield than those matters. According to appellee's contention, their account ceased at a certain point, and another account began with which they had nothing to do. Now, they will take every credit of the second account (not just a credit balance) to apply to the balance due on the first totally disconnected account.
Who says that there has never been any exact and accurate account submitted or disclosed to the court? Appellees in their brief. What do they call an account where every debit and credit item during a period of years is plainly and clearly set down, with its true and proper date? Is it wrong? Where is their proof? Did their liability cease at a certain point? Then indebtedness for which they are liable is readily ascertainable. Were other articles of value turned over to Maddox thereafter? Then they are not liable for them, and they cannot be charged with them. When Maddox accounted for those later entrusted articles, is the entire credit side of that statement to be credited to them? Not much; yet that is their claim analysed.
J. W. McNair, J. A. Naul and Jones & Tyler, for appellee.
If the company was dealing fairly with the sureties why did they not keep them advised of these tremendous and heavy accounts which they held against Maddox? If good faith did not require this notice common business prudence did and the plaintiff in continuing Maddox in its employment after these large sums of money became due and extending to him time for their payment and allowing Maddox an opportunity to work and redeem himself released the securities. This was an extension of time without the consent of the sureties and operated as their release. Govan v. Binford, 25 Miss. 151; Picard v. Shantz, 70 Miss. 381.
The change of employment from district manager to that of crew foreman terminated the contract with these sureties and they cannot be held liable for shortage occurring after this change of employment. The duties of a district manager were evidently different from the duties of a crew foreman. If the duties were different then it required a new contract and any contract to which the sureties were not a party and not contemplated and covered by the terms of their bond cannot be binding on them.
Nothing is said about changing from one position to another in the contract of suretyship and the rule with reference to the liability of sureties is strictissimi juris.
In the case of continuing suretyship for the honesty of a servant if the master discovers that the servant has been guilty...
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