Moore v. Fid. & Cas. Co. Of N.Y.
| Decision Date | 02 January 1934 |
| Docket Number | No. 333.,333. |
| Citation | 177 S.E. 406,207 N.C. 433 |
| Court | North Carolina Supreme Court |
| Parties | MOORE. v. FIDELITY & CASUALTY CO. OF NEW YORK et al. |
Appeal from Superior Court, Pitt County; Daniels, Judge.
Action by A. T. Moore, treasurer of Pitt county, N. C, against the Fidelity & Casualty Company of New York and others. From an unsatisfactory judgment, plaintiff appeals.
Affirmed.
Plaintiff alleged that he was the treasurer of Pitt county, and that on or about May 5, 1927, the defendant Fidelity & Casualty Company, through its agent in Pitt county, N. C, executed and delivered its bond No. 1159556, in the sum of $10,000 in favor of A. T. Moore, treasurer of Pitt county, and the term of said bond began May 5, 1927. On or about February 20, 1928, the said defendant issued to the said treasurer bond No. 1162904 in the penal sum of $6,000, and the term of said bond began on February 20, 1928. It was further alleged that the purpose of securing said bonds was to protect public funds of Pitt county in the hands of said Moore, treasurer, and deposited by said treasurer in the Citizens' Bank of Farmville, N. C. Section 2 in each of said bonds was as follows: "The company shall not be liable hereunder for the payment of any sum due upon any certificate of deposit issued by the bank." The Citizens' Bank of Farmville failed on the 8th day of December, 1930, and at the time of such failure the plaintiff, as treasurer, had on deposit in said bank to his credit, subject to check, the sum of $4,000, and on certificate of deposit No. 2432, dated June 19, 1930, and due September 19, 1930, $15,541.50. The defendant filed an answer, pleading as a defense the provisions of said bond, exempting liability for certificates of deposit. Thereafter on or about October 14, 1933, pursuant to an order of court, the plaintiff amended his complaint, alleging, among other things, that said bonds were intended to cover all deposits held by the plaintiff treasurer in the Bank of Farmville, and "that the execution and delivery of the bonds sued upon, with said provision therein, was a mutual mistake which was understood by the defendant company, said company knowing the requirements of the plaintiff, and that it understood that it was the intention and purpose of said bonds to protect all amounts so deposited with the Citizens Bank; * * * and that the delivery of the bonds sued upon was a mistake which was mutual, and in fairness, in law, equity and good conscience, should be corrected to comply with the conditions established by this plaintiff before any deposits were made, and that section two should be eliminated therefrom."
The defendant interposed the plea of the statute of limitations to the cause of action for correction or reformation set up in the amended complaint. At the trial it was admitted and the court found as a fact that the Citizens' Bank of Farmville suspended business on December 8, 1030, and at the time of such suspension the plaintiff had on deposit therein $4,000 subject to check and $15,-833.33 evidenced by certificate or certificates of deposit. The court further found as a fact that summons in this action was issued and complaint filed on December 5, 1931, and that the amendment to the complaint was filed on or about October 14, 1933, pursuant to an order of court. The plaintiff offered certain oral evidence that other depository bonds had been furnished carrying full coverage and without a clause similar to the one contained in the bonds in controversy, and further that the agent of the surety company was told at the time the bonds were issued that the plaintiff treasurer desired full coverage upon all amounts in the bank. The trial judge excluded all such evidence and upon the facts found by him entered judgment that the plaintiff recover of the surety company the amount of the general deposit and that he recover of commissioner of banks the amount represented by the certificates of deposit.
From judgment so rendered, plaintiff appealed.
J. B. James, of Greenville, for appellant.
Ruark & Ruark, of Raleigh, for appellees.
The controlling questions of law are these:
1. When was the action for the reformation and correction of the indemnity contracts begun?
2. Is such cause of action barred by the statute of limitations?
The depository bonds involved in this litigation contain a clause worded as follows: "The company shall not he liable hereunder for the payment of any sum due upon any certificate of deposit issued by the bank." It was admitted and found as a fact by the trial judge that...
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