Ill. Sur. Co. v. Maguire

• Decision Date: 24 February 1914
• Citation: 157 Wis. 49,145 N.W. 768
• Parties: ILLINOIS SURETY CO. v. MAGUIRE.
• Court: Wisconsin Supreme Court

157 Wis. 49

145 N.W. 768

ILLINOIS SURETY CO.

v.MAGUIRE.

Supreme Court of Wisconsin.

Feb. 24, 1914.

Appeal from Circuit Court, Waukesha County; Martin L. Lueck, Judge.

Action by the Illinois Surety Company against Emma L. Maguire. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Action upon a contract of indemnity executed and delivered by the defendant to the plaintiff October 30, 1908. The contract reads as follows: “Know all men by these presents that I, Emma L. Maguire, of Pewaukee, Wisconsin, in consideration of the issue of a bond of guarantee by the Illinois Surety Company of Chicago, Illinois, to ...... on behalf of Walter R. Maguire, not yet of age, hereby agree that I will protect and immediately indemnify the said Illinois Surety Company against any and all loss, damage or expense it may sustain or become liable for in consequence of such bond or any renewal or extension thereof, hereby admitting that the vouchers or other proper evidence showing payment by said guaranty company of any such loss, damage or expense, shall be conclusive evidence (except for fraud) against me and my estate, of the fact and amount of my liability hereunder to said guaranty company. It being understood that, when the above named party reaches mature age, this obligation becomes cancelled. [Signed] Emma L. Maguire.” Defendant admits that she signed the contract in order that her son might secure employment from W. A. Alexander & Co. On November 6, 1908, the plaintiff executed and delivered to W. A. Alexander & Co. its bond in the sum of $500 indemnifying the firm against such pecuniary loss as it might sustain by any act of larceny or embezzlement on the part of Walter R. Maguire while engaged in the performance of the duties of a cashier thereof.

The bond contained, among other provisions, the following: “That the employer, on his becoming aware of any act which may be made the basis of any claim hereunder, shall immediately give the company notice thereof by telegraph at the company's expense, and in writing by a registered letter, addressed to the secretary of the company, Chicago, Illinois, and shall, within ninety days after his so becoming aware of such act as aforesaid, file with the company its itemized claim thereunder at his own cost and expense with full particulars thereof duly sworn to, * * * and this bond shall become void both as to any existing or future liabilities thereunder unless the aforesaid notice shall have been given as provided for, and unless claim is filed within the time and manner above specified. * * * That no one of the above conditions or provisions contained in this bond shall be deemed to have been waived by, or on behalf of, the company, unless the waiver be in writing, over the signature of an officer of the company.”

On or about September 21, 1909, the above bond was duly renewed to cover a period ending October 23, 1910. August 29, 1910, Walter R. Maguire left the office and employ of W. A. Alexander & Co., without the knowledge of his employer, and did not return. On the same date his employer telephoned the plaintiff that Walter R. Maguire had disappeared and that he was short in his accounts in a sum exceeding the amount of his bond, and on August 31, 1910, W. A. Alexander & Co. sent a letter, but not by registered mail, to the plaintiff informing it that W. R. Maguire had suddenly disappeared and that an investigation of his accounts indicated a shortage, the exact amount of which had not been ascertained, but that enough had been learned to show that it exceeded the amount of plaintiff's bond by a considerable sum. Later the plaintiff took the matter up with W. A. Alexander & Co. and was advised by it that Maguire's shortage exceeded the amount of his bond; that Messrs. Fetzer and Dickey, partners in the firm of W. A. Alexander & Co., explained to the president of the plaintiff how Maguire had obtained large sums of money from them; that thereupon the plaintiff paid W. A. Alexander & Co., by check, the sum of $500, took a receipt for the payment, and also a written release from...