Haupt v. James Cravens & Co.

• Decision Date: 31 May 1909
• Citation: 120 S.W. 541
• Parties: HAUPT et al. v. JAMES CRAVENS & CO.
• Court: Texas Court of Appeals

120 S.W. 541

HAUPT et al. v. JAMES CRAVENS & CO.

Court of Civil Appeals of Texas.

May 31, 1909.

Rehearing Denied June 17, 1909.

Appeal from District Court, Harris County; Norman G. Kettrell, Judge.

Action by James Cravens & Co. against John C. Haupt and others. From a judgment for plaintiff, certain of defendants appeal. Affirmed.

W. D. Sherwood and S. W. Marshall, for appellants. Andrews, Ball & Streetman, for appellee.

REESE, J.

James Cravens & Co. instituted this suit against J. K. Finley, as principal, and J. C. Haupt and J. J. Metcalf, sureties on his bond to recover money due and owing by Finley and secured by such bond. It was alleged that plaintiffs were general agents and managers for certain fire insurance companies, and as such had employed Finley as its local agent or representative at Dallas, Tex.; that Finley as such local agent had entered into a bond with the defendants Metcalf and Haupt as sureties in the sum of $1,500, conditioned that the said Finley should faithfully and punctually pay over at Houston, Tex., to said Cravens & Co., managers, all sums due, or that may become due, to them, as managers aforesaid, from time to time, for money collected by said Finley for premiums collected, less his commissions, and also that said Finley should well and truly perform all the duties of such agent of said companies. A breach of said obligations was alleged in the failure of said Finley to remit and account for premiums to the amount of $1,725.62, to recover which the suit is brought. Defendants answered by general demurrer and general denial, and further specially pleaded, claiming a credit of $375 for premiums charged on policies which were afterward canceled, and averred that the bond was not executed until the latter part of September and not on September 1, 1905, the day of its date; that it was plaintiff's duty to notify the sureties of the acceptance of the bond, which they had failed to do; and that at all events the liability of the sureties was only from after the acceptance of the bond. Upon trial without a jury there was a judgment against Finley for $1,611.88, and against the sureties for $1,476.88, together with $200 attorney's fees as provided in the bond. From the judgment, the sureties Haupt and Metcalf appeal.

The facts are as follows: James Cravens, who did business under the firm name of James Cravens & Co., was the general agent and manager for the state of Texas for certain fire insurance companies, and as such on or about September 1, 1905, he employed J. K. Finley as local agent to represent him at Dallas, Tex., in the matter of soliciting business, issuing policies, collecting premiums, etc. It was the custom of Cravens in the employment of such agents to require of them a bond as security for the payment of premiums collected and the faithful discharge of their duties. Finley entered upon the discharge of his duties, but did not make the bond required, and on September 29, 1905, he was notified by telegraph by Cravens that his agency was suspended. Finley at once communicated by telephone with Cravens, and was told that his agency was suspended because he had not made the bond required. Finley replied that he would get the bond and forward the same, upon which Cravens told him that would be all right, and to send in the bond and continue his agency. Finley forwarded on September 29th by mail to Cravens a bond in the sum...