Lyons v. National Surety Co.

CourtMissouri Supreme Court
Writing for the CourtKennish
Citation147 S.W. 778
PartiesLYONS v. NATIONAL SURETY CO.
Decision Date09 May 1912
147 S.W. 778
LYONS
v.
NATIONAL SURETY CO.
Supreme Court of Missouri, Division No. 2.
May 9, 1912.
Rehearing Denied June 1, 1912.

1. APPEAL AND ERROR (§ 511)—RECORD— BILL OF EXCEPTIONS—TIME—FILE.

The abstract of the record set out in extenso the order allowing time to file the bill of exceptions, and stipulations and orders extending such time until the bill was filed within the time so extended, and further recited that "thereafter, upon the 22d day of December, 1910, and within the time allowed by said

[147 S.W. 779]

orders and stipulations for the filing of said bill of exceptions, the same was duly presented to said judge, and by him signed, approved, ordered filed, and made a part" thereof. The statute provided that the bill of exceptions might be filed at the time or during the term, or within such time thereafter as the court might by an order allow, which time may be extended. Held, that the abstract was not defective, so as to require a dismissal of the appeal because it did not show whether the bill of exceptions was filed in term time or in vacation.

2. COURTS (§ 92)—PRECEDENTS.

A case only becomes a precedent in so far as it decides the issues before the court.

3. APPEAL AND ERROR (§ 511)—BILL OF EXCEPTIONS.

An abstract of the record was not objectionable because it did not expressly show by whom the bill of exceptions was filed, or in what case it was filed.

4. APPEAL AND ERROR (§ 582)—ABSTRACT OF RECORD—RECITALS.

It is not necessary that a record entry other than a pleading involved, such as an order, etc., be set out in the abstract of the record; a recital in narrative form of the making of the order, etc., being sufficient.

5. APPEAL AND ERROR (§ 518)—BILL OF EXCEPTIONS —ABANDONED PLEADINGS.

After the filing of the second amended petition, the original and first amended petitions became abandoned pleadings, and could only become a part of the record by being embodied in a bill of exceptions.

6. INSURANCE (§ 177) — INDEMNITY — CONSTRUCTION OF OBLIGATION—TERM.

A bond which obligated a surety company to make good any loss sustained by the dishonesty of a bank cashier during the term of the bond, which ran to November 14, 1903, "which losses shall be discovered during said term or within six months thereafter, and within six months after the determination of this obligation," did not impose any liability for losses from embezzlements by the cashier not discovered until January, 1906, though the cashier fraudulently concealed the embezzlement.

Appeal from Circuit Court, Lafayette County; Samuel Davis, Judge.

Action by Charles Lyons, receiver of the Middleton Bank of Waverly, Mo., against the National Surety Company. From a judgment for plaintiff, defendant appeals. Reversed.

Frank Hagerman and Kimbrough Stone, for appellant. Alexander Graves and Horace Blackwell, for respondent.

KENNISH, J.


This is an appeal from a judgment of the circuit court of Lafayette county in an action by Charles Lyons, receiver of the Middleton Bank of Waverly, Mo., plaintiff, against the National Surety Company, defendant, to recover the penalty of a bond for $10,000, made by the defendant to said Middleton Bank, guaranteeing the fidelity of E. H. Lewis, cashier of said bank. By agreement of the parties a jury was waived, and at the April term, 1907, the cause was tried to the court. The trial resulted in a finding and judgment in favor of the plaintiff for $10,000, and from such judgment the defendant appealed to this court.

Plaintiff's second amended petition, upon which the cause was tried, alleges that on the 25th day of November, 1902, the defendant, by its bond of that date, executed and delivered to said Middleton Bank, undertook and agreed to make good and reimburse to the said bank any pecuniary loss of money, security, or other personal property belonging to said bank, not exceeding the sum of $10,000, that might be sustained by said bank by reason of the fraud or dishonesty of E. H. Lewis, cashier of said bank, in connection with the duties pertaining to the position of cashier, occurring during a term beginning on the 15th day of November, 1902, and ending on the 14th day of November, 1903.

The petition further alleges that there have been breaches of said bond, in that said Lewis at the times, in the amounts and by the means specifically set out in the petition, fraudulently and dishonestly converted to his own use the sum of $22,867.50 belonging to said bank. All of the acts of embezzlement counted on in the petition are alleged to have occurred in the months of August and October, 1903. The petition also alleges that neither the Middleton Bank nor its officers before the appointment of the receiver had notice or knowledge that there had been a loss under said bond, and that the receiver did not learn of the existence of the bond, and that the bank had sustained losses that were covered by the bond until the month of January, 1906; that on February 1, 1906, the receiver gave the defendant written notice of the loss and of his claims for reimbursement. The prayer of the petition is for judgment for the full penalty of the bond.

The answer pleads six separate defenses, as follows: (1) A general denial; (2) that the bond expressly provides that the defendant shall be liable only for such losses as shall be discovered during the term of the bond or within six months thereafter; that it is also provided by the bond that notice of loss shall be given to the defendant immediately upon discovery and during the term of the bond or within six months thereafter; that the alleged losses were not discovered,

147 S.W. 780

nor was notice thereof given to the defendant, within the time so provided for discovery and notice; (3) false representations made by the president of the bank in the written application for the bond; (4) failure of the bank to comply with the terms of the bond as to making frequent audits and examinations of Lewis' accounts; (5) failure to notify the defendant, as required by the bond, that Lewis gambled and was dishonest and unworthy of confidence, after knowledge of such facts came to the officers of the bank; (6) that suit was not instituted within one year after making claim of loss, as required by the conditions of the bond. The reply is a general denial.

The evidence introduced at the trial is voluminous, and we shall refer to only such parts of it as are essential to a proper understanding of the legal questions presented. The plaintiff introduced in evidence the bond upon which the action is based. The paragraph containing the obligation and risk assumed by the defendant is as follows: "Now, therefore, for and in consideration of the sum of twenty-five dollars, and in further consideration of the statements made by the employer to the company and of the covenants on the part of the employer hereinafter contained, the company hereby undertakes and agrees to and with the employer that it will, subject to the provisions and conditions herein contained, which shall be conditions precedent to the right of the employer to recover hereunder, at the expiration of three months next after proof satisfactory to the company of any loss for which the company may be liable hereunder shall have been furnished to the company at its principal offices in the city of New York, make good and reimburse to the employer such pecuniary loss of money, securities or other personal property belonging to the employer, or in the employer's possession and for which the employer is legally liable, not exceeding the sum of ten thousand dollars, as may be sustained by the employer by reason of the fraud or dishonesty of the employé in connection with the duties pertaining to the office or position to which the employé has been appointed, and occurring during the term beginning on the fifteenth day of November, A. D. 1902, and ending on the fourteenth day of November, A. D. 1903, both days inclusive which loss shall be discovered during said term or within six months thereafter and within six months after the determination of this obligation."

Other evidence introduced by the plaintiff tended to show the following facts: E. H. Lewis was cashier of the Middleton Bank from 1899 until the bank failed in 1905. The Secretary of State took charge of the bank on May 2, 1905. On the day following plaintiff was appointed receiver, and three days later qualified as receiver, and took possession of the effects of the bank. Shortly after he was appointed receiver, plaintiff made a demand upon the president of the bank for the bonds of the cashier and assistant cashier. The president gave him the bond of the assistant, but did not deliver to him any of the bonds given by Lewis as cashier because he did not know where any of them were. In November or December, 1905, the receiver found the bond in suit among some papers belonging to the...

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19 practice notes
  • Spotts v. Spotts, No. 30406.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1932
    ...5 S.W. (2d) 46; Wood v. Wells, 270 S.W. 332; Collins v. Andriano, 264 Mo. 475, 175 S.W. 194; Lyons v. National Surety Co., 243 Mo. 607, 147 S.W. 778; Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722.] The bystanders' bill in the abstract, in which there is a call for the will to be copied, ......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...rel. Bixby v. St. Louis, 241 Mo. 231, l.c. 239-240, 145 S.W. 801, l.c. 803-804; Lyons v. National Surety Company, 243 Mo. 607, l.c. 620, 147 S.W. 778, l.c. 781; Simpson v. Witte Iron Works Co., 249 Mo. 376, l.c. 385, 155 S.W. 810, l.c. 811; State ex rel. Dunlap v. Higbee, 328 Mo. 1066, l.c.......
  • Kelso v. Ross Construction Co., No. 32202.
    • United States
    • United States State Supreme Court of Missouri
    • July 9, 1935
    ...Co., 19 S.W. (2d) 510; Spotts v. Spotts, 55 S.W. (2d) 977; Boyd v. St. Louis Brewing Assn., 5 S.W. (2d) 46; Lyons v. Natl. Surety Co., 147 S.W. 778; Orlando v. Surwald, 47 S.W. (2d) 228; R.S. 1929, sec. 893; White v. Hoffman, 52 S.W. (2d) 830; State v. Trimble, 53 S.W. (2d) 1033; Wolford v.......
  • Central States Savings & L. Assn. v. Fid. & Guar., No. 30865.
    • United States
    • United States State Supreme Court of Missouri
    • December 22, 1933
    ...during the continuance of the bond nor within six months after its termination as provided in the bond. [Lyons v. Surety Co., 243 Mo. 607, 147 S.W. 778.] However, plaintiff contends that the surety had no lawful right to cancel the bond as to Reid & Huffman on the written request of Greenwo......
  • Request a trial to view additional results
19 cases
  • Spotts v. Spotts, No. 30406.
    • United States
    • United States State Supreme Court of Missouri
    • December 20, 1932
    ...5 S.W. (2d) 46; Wood v. Wells, 270 S.W. 332; Collins v. Andriano, 264 Mo. 475, 175 S.W. 194; Lyons v. National Surety Co., 243 Mo. 607, 147 S.W. 778; Forrister v. Sullivan, 231 Mo. 345, 132 S.W. 722.] The bystanders' bill in the abstract, in which there is a call for the will to be copied, ......
  • Van Houten v. K.C. Pub. Serv. Co., No. 19033.
    • United States
    • Court of Appeal of Missouri (US)
    • November 7, 1938
    ...rel. Bixby v. St. Louis, 241 Mo. 231, l.c. 239-240, 145 S.W. 801, l.c. 803-804; Lyons v. National Surety Company, 243 Mo. 607, l.c. 620, 147 S.W. 778, l.c. 781; Simpson v. Witte Iron Works Co., 249 Mo. 376, l.c. 385, 155 S.W. 810, l.c. 811; State ex rel. Dunlap v. Higbee, 328 Mo. 1066, l.c.......
  • Kelso v. Ross Construction Co., No. 32202.
    • United States
    • United States State Supreme Court of Missouri
    • July 9, 1935
    ...Co., 19 S.W. (2d) 510; Spotts v. Spotts, 55 S.W. (2d) 977; Boyd v. St. Louis Brewing Assn., 5 S.W. (2d) 46; Lyons v. Natl. Surety Co., 147 S.W. 778; Orlando v. Surwald, 47 S.W. (2d) 228; R.S. 1929, sec. 893; White v. Hoffman, 52 S.W. (2d) 830; State v. Trimble, 53 S.W. (2d) 1033; Wolford v.......
  • Central States Savings & L. Assn. v. Fid. & Guar., No. 30865.
    • United States
    • United States State Supreme Court of Missouri
    • December 22, 1933
    ...during the continuance of the bond nor within six months after its termination as provided in the bond. [Lyons v. Surety Co., 243 Mo. 607, 147 S.W. 778.] However, plaintiff contends that the surety had no lawful right to cancel the bond as to Reid & Huffman on the written request of Greenwo......
  • Request a trial to view additional results

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