Lee v. Fidelity & Deposit Co. of Maryland

• Decision Date: 17 January 1935
• Docket Number: 6 Div. 623.
• Citation: 158 So. 764,229 Ala. 546
• Court: Alabama Supreme Court
• Parties: LEE v. FIDELITY & DEPOSIT CO. OF MARYLAND.

158 So. 764

229 Ala. 546

LEE v. FIDELITY & DEPOSIT CO. OF MARYLAND.

6 Div. 623.

Supreme Court of Alabama

January 17, 1935

Appeal from Circuit Court, Jefferson County; J. F. Thompson, Judge.

Action for breach of official bond by Grover H. Lee against the Fidelity & Deposit Company of Maryland. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Frederick V. Wells and William Conway, both of Birmingham, for appellant.

Lawrence F. Gerald, of Clanton, and Mullins & Deramus, of Birmingham for appellee.

BROWN Justice.

This is an action by the appellant against the appellee for breach of the conditions of the official bond of J. Z. Mims as clerk of the circuit court of Chilton county. The defendant's demurrers were sustained to the several counts of the complaint, and the plaintiff took a nonsuit and has appealed.

The assignments of error present for review the court's ruling as to counts 10 and 11.

These counts, in substance, are identical, each relating to a different suit. They aver:

That the plaintiff was one of three defendants in a suit brought and tried in the circuit court of Chilton county. That at the conclusion of the evidence the court on motion of plaintiff in this suit excluded all the evidence going to show his liability and at his request directed a verdict for him. That plaintiff and his attorney left for their homes in Birmingham before the jury had concluded their deliberation and brought in a verdict. That, notwithstanding the instructions of the court, the jury returned a verdict against all of said defendants, including the plaintiff.

The case was tried in Chilton circuit court on November 3, 1933 and on November 7, 1933, plaintiff's attorney wrote and mailed to said Mims, as clerk of said court, a letter in words as follows:

"Dear Sir: Kindly advise results of the trial in the above cases as the writer left the court room before the jury returned."

Mims replied to this letter on November 8, 1933:

"Dear Sir: The following verdict was returned by the jury in each of the above cases: 'We the Jury find for the plaintiff in this cause against the defendants Cliff Clements and W. J. Hooks, and assess his damages at Two Hundred Fifty ($250.00) dollars, under count two of the complaint in this cause.'

"Yours truly,

"J. Z. Mims, Clerk."

That plaintiff relied on this information and did not discover that the information therein contained was erroneous until it was too late to move for a new trial. That the information contained in said letter was...