Johnson v. Provincial Ins. Co., of Toronto

• Decision Date: 08 January 1864
• Citation: 12 Mich. 216
• Court: Michigan Supreme Court
• Parties: Hiram R. Johnson v. The Provincial Insurance Company of Toronto

12 Mich. 216

Hiram R. Johnson v. The Provincial Insurance Company of Toronto

Supreme Court of Michigan

January 8, 1864

Heard October 30, 1863 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Wayne Circuit.

On July 22, 1858, the defendants in error filed their declaration in said court, against Roderick M. Chittendon, Hiram R. Johnson and Hiram R. Andrews, upon a bond given by them, conditioned that said Chittendon should, from time to time, account for and pay or cause to be paid to said insurance company, all such moneys as should be by him received for said company, and well and faithfully execute and perform his duties as agent of said company. Breach, that said Chittendon failed to account for and pay over the sum of $ 555.36 by him received for the company.

September 14, 1858, the company recovered judgment in said suit by default, for $ 2,000, the penalty of the bond, and had their damages assessed at $ 565.61.

November 29, 1859, scire facias was issued upon said judgment as follows:

"The People of the State of Michigan, to the Sheriff of the County of Wayne, Greeting:

[SEAL.] "Whereas, The Provincial Insurance Company of Toronto, of the Province of Canada, heretofore, to wit: on the fourteenth day of September, 1858, in the Circuit Court for the county of Wayne, and state of Michigan, recovered against Roderick M. Chittendon, Hiram R. Johnson, and Hiram R. Andrews, judgment for a certain debt of $ 2,000; and whereas, the said court also awarded execution against the said Roderick M. Chittendon, Hiram R. Johnson and Hiram R. Andrews, for the sum of $ 565.61, ascertained and determined by said court to be the amount due the said plaintiff, by reason of the breach of a certain writing obligatory, hereinafter mentioned, being part of said debt for which said judgment was rendered, and also their costs and charges expended in that behalf by said plaintiffs, whereof the said Roderick M. Chittendon, Hiram R. Johnson and Hiram R. Andrews were convicted, as by the record and proceedings thereof remaining in said Circuit Court, before the judge thereof, at the city of Detroit in said county of Wayne, manifestly appears.

"And afterwards, at this day, to wit: the twenty-ninth day of November, 1859, the said Provincial Insurance Company of Toronto, by William A. Moore, their attorney, come into the said Circuit Court for the county of Wayne, and before the judges thereof at the said city of Detroit, and in accordance with the form of the statute in such cases made and provided give the said court to understand and be informed that the said debt so by their account as aforesaid was and is a certain penal sum of $ 2,000, mentioned in a certain bond or writing obligatory, bearing date and executed by the said defendants, and sealed with their seals, on the second day of September, 1857, at the said city of Detroit, and within the jurisdiction of this court, and to the court now here shown, and being upon the files thereof which said writing obligatory was and is subject to a certain condition thereunder written, whereby after reciting to the effect following, to wit: Whereas the said defendant, R. M. Chittendon, had been retained and employed by the said plaintiffs as an agent in the transaction of fire and marine insurance business, for and on account of said plaintiffs, and upon being so employed had agreed to enter into a bond in a sufficient penalty, for insuring to the said plaintiffs the faithful discharge of his duties in his said employment, and whereas for the engagement of the said Roderick M. Chittendon as such agent, they, the said Hiram R. Johnson and Hiram R. Andrews, on the behalf and at the request of the said Roderick M. Chittendon, did consent and agree to become surety unto the said plaintiffs, for the said agent's true and faithful execution and discharge of his said office, as thereinafter mentioned, to wit: that if the said Roderick M. Chittendon should, from time to time, and as often as he should be thereunto requested by the said plaintiffs, their successors and assigns, well and truly account for, and pay or cause to be paid unto the said plaintiffs, their successors and assigns, all such sum or sums of money as should be by him, the said Roderick M. Chittendon, had and received for, on account of, or to the use of said plaintiffs, in any way whatever, and should at all times, when thereunto requested, well and truly account for and deliver unto the said plaintiffs, or unto such person or persons as the said plaintiffs should appoint to receive the same, all such sum or sums of money, books, papers, writings, receipts, vouchers, matters and things which he, the said Roderick M. Chittendon, had received, or should from time to time be intrusted with, or which should come into his hands for, on account of, or to the use of the said plaintiffs and their successors; also, if the said R. M. Chittendon should from time to time, whilst he should so continue an agent of the said plaintiffs, in all things and in all respects well and faithfully execute and perform the said office of agent according to the instructions which might from time to time be furnished him from the said plaintiffs, or when he should act without instructions, then said obligation should be void, otherwise to be and remain in full force and virtue.

"And the said plaintiffs, the Provincial Insurance Company, of Toronto, also give the said Circuit Court for the county of Wayne here to understand and be informed, that the declaration by them filed in the said action, on which they obtained said judgment aforesaid, was exhibited on the 22d day of July, 1858, and that said action was brought and commenced upon and for a certain breach of the aforesaid writing obligatory, by the said defendants, before the exhibition of the declaration aforesaid.

"But the said plaintiffs, for further and other breach of the said writing obligatory, according to the form of the statute in such case made and provided, give the said court to understand and be informed, that after the execution of the said writing obligatory, and before, and at the time of the filing of the said declaration in the aforesaid action, the said Roderick M. Chittendon had received, as agent of and for, and on account of the said plaintiffs, a large sum of money, to wit: the further sum of three hundred and two dollars and sixty cents, and that said Chittendon, although thereunto afterwards often requested, to wit: on the...