Daly v. Old

• Decision Date: 11 January 1909
• Docket Number: 1935
• Citation: 35 Utah 74,99 P. 460
• Court: Utah Supreme Court
• Parties: THOMAS F. DALY, Plaintiff and Respondent, v. WILLIAM W. OLD and R. H. OFFICER, Defendants and Respondents, and W. MONT. FERRY, Defendant and Appellant

99 P. 460

35 Utah 74

THOMAS F. DALY, Plaintiff and Respondent, v. WILLIAM W. OLD and R. H. OFFICER, Defendants and Respondents, and W. MONT. FERRY, Defendant and Appellant

No. 1935

Supreme Court of Utah

January 11, 1909

APPEAL from District Court, Third District. Hon. T. D. Lewis, Judge.

Action against sureties on bond. From a judgment for plaintiff defendant W. Mont. Ferry appeals.

AFFIRMED.

Messrs Richards, Richards & Ferry for appellant.

Messrs Snyder & Snyder for respondents.

FRICK, J. McCARTY, J., concurs, and STRAUP, C. J., in result.

OPINION

FRICK, J.

This is an appeal from a judgment against appellant entered by the district court of Salt Lake county.

The judgment is based upon substantially the following facts, as found by the district court: That on the 28th day of October, 1901, the respondent, Daly, appointed in writing one William W. Old as Daly's agent to solicit and procure applications for life insurance, and to perform such other duties in connection therewith as should be intrusted to said agent; that, under the original appointment, said Old was permitted to solicit and procure said applications within the territory of the States of Oregon and Washington; that thereafter, on the 10th day of November, 1901, the territory in which such applications were to be solicited and procured was changed from the States of Oregon and Washington to the States of Utah, Colorado, and Wyoming; that said Old acted under said appointment, and solicited and procured applications within the territory last above named and did not solicit or procure applications within the States of Oregon and Washington; that on the date first above named the said Old, as principal, and the appellant Ferry and one R. H. Officer, as sureties, executed and delivered to the respondent their obligation in writing, which, among other things, contained the following conditions: "The condition of this obligation is such that whereas the above named bounden William W. Old has been, under an instrument in writing of even date herewith and hereby referred to, appointed by said Thomas F. Daly, manager, as his agent, for the purpose of procuring applications for life insurance, and performing such other duties in connection therewith as may be entrusted to him: Now, if the said William W. Old shall pay or hand over all moneys payable in any event to Thomas F. Daly, manager, aforesaid, which shall at any time be received by him, or for which he shall be accountable or liable, whether the same shall be or shall have been received by him personally and solely, or by, through, or together with a copartner, coagent or other persons, including all money so received prior to the date of this instrument (if any such shall be), as well as those received thereafter; as also all moneys which he now owes, or hereafter may owe, said Thomas F. Daly, manager, aforesaid, on account of advances made to him or otherwise. . . . and shall also on the tenth day of each month hereafter account for, remit and pay over to said Thomas F. Daly, manager, or his successors, or whenever otherwise required so to do by said Thomas F. Daly, manager, or his successors to his office, all moneys due by him (not previously remitted and duly accounted for) as such agent, less his commission and allowances as expressly authorized by his written appointment, or such other written instructions as he may receive, and shall also, on the twenty-fifth day of each month make and render to said Thomas F. Daly, manager, or his successors, or whenever otherwise requested so to do, a full, just and true account of said moneys and the sources from whence they shall have been received, then this obligation shall be void, otherwise to remain in full force and effect. It being agreed and understood that this obligation shall not be annulled or revoked without the consent of the above named Thomas F. Daly, manager, aforesaid, but shall be and remain in force so long as said William W. Old shall continue to be the agent of said Thomas F. Daly, manager, aforesaid, whether under his existing appointment or any future one, and whether such present or future agency be sole or whether said William W. Old be joined with any other person or persons, and until all transactions under such agency shall have been finally adjusted and settled, and all liabilities of said William W. Old by reason thereof shall have been discharged, it is, however, expressly agreed that neither forbearance nor the extension of time for the payment of moneys due or to become due or failure to notify said sureties hereunder shall operate as a waiver of their liability, but that their liability shall continue as long as said Thomas F. Daly, manager, shall have a valid demand against said William W. Old." The court also found "that said undertaking was executed in consideration that plaintiff (respondent) would appoint defendant Old as agent within the States of Oregon and Washington, or for any other territory; . . . that the sureties intended when they executed the bond to become bound as sureties for the defendant Old under such new or additional appointment." The court also found that Old had defaulted; that the other surety on the bond had been released by reason of his death, and for a failure to file a claim against his estate, and that the bond was in force against Ferry; and that the sum of $ 1,413.33 was due thereon for which he was liable, and the sum of $ 2,827.46 for which Old was liable, and entered judgment accordingly, from which Ferry alone appeals.

Counsel in their brief state the errors to be reviewed by us as follows: "Objections were made to the sufficiency of the evidence, and to the sufficiency of the findings, all of which raise the sole question whether this provision in the bond was sufficiently broad in its terms to hold the sureties for a default of the principal, Old, in writing insurance in a territory not covered by the contract referred to. All other assignments of error, not being fatal to the plaintiff's recovery on retrial, numerous though they were, are abandoned." It is asserted by counsel for appellant that, under the original contract, the defendant Old was appointed agent to solicit and procure applications for life insurance within certain specified territory; that this territory was abandoned, and the States of Utah, Colorado, and Wyoming substituted without the knowledge or consent of appellant; and that this constituted such a change or departure from the agreement upon which appellant obligated himself for the default of Old that it avoids the bond. In order to arrive at a correct conclusion, the provisions of the contract of appointment and the bond must be considered and construed together. As we view it, paragraphs 6 and 14 of the contract are the only ones that contain provisions which are material to a determination of the scope of the obligations assumed by appellant. Paragraph 6 is as follows: "It is agreed that the district within which said party of the second part shall have permission to operate is within the States of Oregon and Washington, but said district is not assigned exclusively to him." The fourteenth paragraph reads as follows: "It is agreed that said party of the second part shall keep deposited with said party of the first part a satisfactory bond for the faithful performance of all duties pertaining to his agency, and that said bond shall hold good under this or any future agreement." By referring to the sixth paragraph it will be observed that the territory in which Old is given permission to solicit applications for life insurance is specified to be within the States of Oregon and Washington. For the purpose of this decision, we will assume that within the purview of the clause in the original contract, now under consideration, the appointment of Old was a limited one so far as the territory in which he was to operate was concerned, although the clause does not in terms limit the appointment to those States, but simply gives Old permission to solicit insurance therein. If we now consider the language used in the two paragraphs quoted above in connection with what is expressed in the bond, what was the intention of the parties with regard to the scope of the obligations assumed by appellant? Is it not as clearly stated as it well could be that a new or future agreement and appointment is permitted and contemplated? Is it not just as clearly expressed that the bond in question should apply to such future agreement and appointment? Up to this point, therefore, there cannot be any room for either construction or doubt.

But it is asserted that the agreement and appointment referred to were intended to be limited to some agreement or appointment operative within the States of Oregon and Washington only. By referring to the terms of the contract and bond, it will be seen that no such a limitation is therein expressed. If it exists at all, therefore, it must be implied. What is there in either the contract or bond from which such a limitation may be implied? It seems to us the parties have in terms provided against such an implication in view of the language contained in the fourteenth paragraph of the contract, and in further view of what is said in the bond itself. In the contract the particular agency for which the bond is to be in force is expressly stated. The agency there referred to is and can be no other than the agency under which applications for life insurance were to be solicited, and such transactions as are naturally and necessarily connected therewith. This to our minds is clearly and unambiguously expressed. This being so, there is no room for the application of the doctrine that where general terms are used in any instrument which, if standing...