Hodges v. Price

• Decision Date: 01 July 1942
• Docket Number: No. 11381.,11381.
• Citation: 163 S.W.2d 868
• Parties: HODGES et al. v. PRICE et al.
• Court: Texas Court of Appeals

Page 868

163 S.W.2d 868

HODGES et al. v. PRICE et al.

No. 11381.

Court of Civil Appeals of Texas. Galveston.

July 1, 1942.

Rehearing Denied July 30, 1942.

Appeal from District Court, Harris County; Ewing Boyd, Judge.

Action by Robert B. Price against C. R. Rowe and the sureties on his agency bond to recover a sum alleged to be due under an agency contract with plaintiff. From a judgment for plaintiff, entered upon plaintiff's motion to discharge the jury and render judgment, defendant J. Edward Hodges and M. C. Balshaw appeal.

Affirmed.

E. R. Campbell, Ed. Arnold, and Abe W. Wagner, all of Houston, for appellants.

Able & Stokes, of Houston, for appellees.

MONTEITH, Chief Justice.

This action was brought by appellee, Robert B. Price, suing in his individual capacity, against C. R. Rowe and the sureties on his agency-bond, T. C. Rowe, J. Edward Hodges and M. C. Balshaw, for the recovery of the sum of $2,275.80, with interest and attorney's fees alleged to be due under the terms of an agency contract with appellee.

Appellee alleged that at all times material to this action, he had conducted a general insurance agency in Dallas, Texas, under the name of Robert B. Price & Company; that on February 8, 1929, acting through his duly authorized agent, R. S. Graham, he had entered into an oral insurance agency contract with C. R. Rowe, and that on said date, under the terms of said contract, C. R. Rowe, as principal, and T. C. Rowe, J. Edward Hodges, and M. C. Balshaw, as sureties, had executed and delivered to him an agency-bond in the sum of $3,500.

Appellants answered by general demurrer and general denial. They specially pled the two and four years statutes of limitation. Vernon's Ann.Civ.St. Arts. 5526, 5527.

At the close of all the evidence, defendants' motion for an instructed verdict and their motions for the submission of various special issues as to alleged controverted matters having been refused, the court, upon appellee's motion, discharged the jury and rendered judgment in favor of appellee against all of the defendants. Appellants J. Edward Hodges and M. C. Balshaw have appealed from this action of the trial court.

At and prior to the date of the execution of the contract and bond in question, appellee, Robert B. Price, was engaged in operating a general insurance agency in Dallas, Texas, under the name of Robert B. Price & Co. He appointed C. R. Rowe, who had for a number of years been engaged in the insurance business in Houston, Texas, as his agent for selling insurance, and other matters pertaining thereto. As a condition to said appointment, C. R. Rowe, as principal, and T. C. Rowe, J. Edward Hodges, and M. C. Balshaw, as sureties, executed and delivered to appellee the bond above referred to, dated February 8, 1929. The conditions of the bond material to this appeal are: "* * * that if the above bounden C. R. Rowe, Agent, shall faithfully and punctually pay over at Dallas, Texas, to said Robert B. Price & Co., as general agents and as individuals, all sums due, or that may become due to them, or either of them, from time to time for premiums on policies issued by such agent, whether such policies have been collected by C. R. Rowe or not, and also all moneys whatever collected or received by C. R. Rowe for any account whatever for said Robert B. Price & Co., whether as general agents or as individuals, and shall also pay over the return commissions upon any and all policies of the said company, or either of them, which for any cause may be cancelled at any time, * * * and shall well and truly perform all the duties of such agent of such companies * * *, then this obligation shall be null and void, otherwise to remain in full force and effect."

The agency contract between appellee and C. R. Rowe was terminated by agreement on June 19, 1930.

Prior to the execution of said agency contract, C. R. Rowe had become indebted to Gross R. Scruggs & Co. in the sum of $3,800. Gross R. Scruggs & Co. also operated a general insurance agency in Dallas, Texas, and maintained joint offices with appellee, with R. S. Graham as general manager of the two agencies. After the termination of the agency contract with appellee on June 19, 1930, C. R. Rowe executed a written acknowledgment of his indebtedness to appellee in the amount of $2,275.80. He also acknowledged an indebtedness to Gross R. Scruggs & Co. of $7,331.63. The item of $3,800 above referred to was included in the acknowledged indebtedness to Gross R. Scruggs & Co. of $7,331.63. After the termination of said agency contract, C. R. Rowe remitted to the Dallas offices of Scruggs & Co. and Price & Co. sums aggregating $3,090.09. All of these remittances, aggregating the last mentioned sum, were credited to the said prior indebtedness of $3,800 due Gross R. Scruggs & Co. It is undisputed that the item of $3,800 was the oldest item of indebtedness due either appellee or Gross R. Scruggs & Co.

Under their first point, appellants complain of the action of the trial court in rendering judgment in favor of appellee, for the alleged reason that, since appellee's cause of action was based upon and evidenced by an oral agreement between appellee and C. R. Rowe, appellee's cause of action against appellants, J. Edward Hodges and M. C. Balshaw, as sureties on the bond of C. R. Rowe, was barred by the statute of limitations of two years prior to the filing of appellee's suit. This contention cannot be sustained.

It is the established law in this state that obligations created by statute are subject to the bar of two years statute of limitations (Article 5526, Subd. 4, R. S. 1925), and that the bond of an official which only obligates the official to "faithfully perform and discharge all the duties required of him by law" as such officer, does not within itself create a contract to do more than perform his official duties, and that therefore such obligations are subject to the bar of the two years statute of limitation. Bexar County et al. v. Maverick et al., Tex.Civ.App., 159 S.W.2d 140, 141, writ refused; Shaw v. Bush, Tex.Civ. App., 61 S.W.2d 526, writ refused; Rose v. First State Bank, 122 Tex. 298, 59 S. W.2d 810; Phillips v. Hail, Tex.Civ.App., 118 S.W. 190.

A distinction has been drawn, however, between the above cited cases, involving official bonds which only required the bonded official to discharge the duties required of him by law, and cases between the immediate parties to bonds which contain within themselves a contract to do the specific thing for the non-performance of which the action is brought.

The bond involved herein is conditioned not only that C. R. Rowe shall well and truly perform his duties as such agent, but it further provides that he shall pay over to appellee all sums due, or that may become due, for premiums on policies issued. By its terms the bond not only contains an obligation to carry out the...