National Cas. Co. v. Sipes
| Decision Date | 06 July 1937 |
| Docket Number | 26646. |
| Citation | 71 P.2d 459,180 Okla. 548,1937 OK 455 |
| Parties | NATIONAL CASUALTY CO. v. SIPES. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Sept. 14, 1937.
"Moral turpitude" is an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow man, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.
Syllabus by the Court.
1. In an action by the obligee against the surety, on a fidelity bond where the obligee had no part in the matter of inducing the surety to sign the bond, the fact that the agent had failed to perform under prior contract to his principal, the obligee of the bond, and that the obligee did not volunteer to inform the surety of that fact, did not constitute a fraud upon the surety, nor was such nondisclosure sufficient to release the surety from his obligation, if the acts of the agent in failing to perform the prior contract were not acts indicating moral turpitude.
2. Where timely notice and demand is given the surety on a fidelity bond, and suit is brought to recover for defaults of the principal on the bond, and the obligee has not theretofore notified the surety of each failure to make monthly payments in full, such failure of prior notice does not operate to release the surety from liability unless the acts of the principal indicate moral turpitude, and whether such acts involve moral turpitude is a question of fact for the jury or the court as a trier of fact, and where there is competent evidence reasonably tending to support the finding of the court or jury, the same will not be disturbed on appeal.
Appeal from Court of Common Pleas, Oklahoma County; Chas. W. Conner Judge.
Action by Jasper Sipes, an individual, doing business as Jasper Sipes Book Company, against the National Casualty Company. Judgment for plaintiff, and defendant appeals.
Affirmed.
Follens & Follens, of Oklahoma City, for plaintiff in error.
Hall & Thompson and R. A. Jackson, all of Oklahoma City, for defendant in error.
We will refer to the parties to this cause as they appeared in the lower court.
This is an action brought by plaintiff to recover from the defendant by reason of defendant's having qualified as surety on a bond guaranteeing that Doyle Book Store, principal on the bond, would faithfully perform the terms of a contract made between plaintiff and said principal. Plaintiff operated a school book depository, and as such in 1927 employed Doyle Book Store as his agent for handling of school books and supplies under consignment contract; his agent furnishing indemnity bond from date to date for the faithful performance of the duties of the contract, among them being the duty of accounting for and turning over to plaintiff moneys received for the sale of consigned goods. This relation continued until about June, 1931, when the Federal Surety Company surety on the contract and bond of Doyle Book Store, was adjudged a bankrupt, at which time Doyle Book Store had not remitted to plaintiff for books sold in the sum of $2,119.51. Doyle Book Store had made reports of books sold from time to time showing books sold for larger sums than was remitted to plaintiff until the final report totaling an unremitted sum of $2,119.51. On June 2, 1931, plaintiff wrote Doyle Book Store asking what had become of the money for the books sold and for which they had received no remittance, and discussed plans for renewing the contract and bond, suggesting that the bonding company would not renew the bond if told that Doyle Book Store was in default, and that he settle up in full with them and then get a bonding company to write a new bond, or if he knew some way whereby he could get a new bond without getting clearance under the old bond they would consider the plan.
Thereafter near the middle of August, 1931, plaintiff received from Doyle Book Store a contract and bond dated August 1, 1931. Defendant qualified as surety on this latter bond. Both contracts and both bonds were identical in terms and provisions.
The contract of August 1, 1931, the faithful performance of which was guaranteed by the bond of the defendant, provided that plaintiff consigned his books to Doyle Book Store; that title to the books was retained by plaintiff until sold; that all moneys derived from the sale of books belonged to plaintiff, and the Doyle Book Store held the money as trustee. The Doyle Book Store was further required to sell all books for cash, to remit monthly for sales made, and on the first day of February, April, October, and December of each year to furnish complete inventory of books and supplies on hand, and with said inventory remit in full all moneys due for books and supplies not accounted for therein.
On September 11, 1931, Doyle Book Store rendered a statement to plaintiff showing daily deposits of cash received from sales from September 1st to 9th of $1,602.92, and inclosing remittance of $1,500 to plaintiff, explaining a balance in bank of $102.92 was left in the bank to cover insufficient checks that might have been received on sales. Thereafter, on September 28, 1931, Doyle Book Store remitted $400 to plaintiff. Thereafter, on October 2, 1931, an inventory of books on hand was made by the Doyle Book Store and figured by plaintiff showing total debits, goods on hand, and invoice of goods to that date, of $6,743.39 to be offset by inventory of goods on hand and remittances by checks paid in September to plaintiff in the amount of $6,510.84, which report showed a balance due plaintiff at that date of $232.55. No further remittances were made. Thereafter inventory of goods on...
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