Riner v. New Hampshire Fire Insurance Company
| Decision Date | 06 March 1900 |
| Citation | 9 Wyo. 81,60 P. 262 |
| Parties | RINER v. NEW HAMPSHIRE FIRE INSURANCE COMPANY |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Laramie County, HON. CHARLES W BRAMEL, Judge of the Second District, presiding.
This was an action brought by the New Hampshire Insurance Company upon the bond of its agent to recover money alleged to have been received by the agent and not paid over. The surety Charles W. Riner, was the defendant. The case was tried to a jury, but the court directed a verdict for the plaintiff. The defendant prosecuted error. The facts are stated in the opinion.
Reversed.
Frank H. Clark, for plaintiff in error.
The agent paid over more money during the period for which suit is brought than he received. Yet the court took the case from the jury, and directed a verdict for the company. We contend that was error. The surety is entitled to credit for the money paid during that period and by the company applied upon a previous note of the agent. The money should have been applied upon the current business as against the surety. An issue of fact must be submitted to the jury where there is a conflict of testimony. We contend that the court invaded the province of the jury. (Thomp. Tr., 1037; id., 1038, 1036; Horner v. R. R. Co., 70 Mo., App., 285; Proffer v. Miller, 69 Mo. App., 501; R. R. Co. v McClendon, 42 S. W., 283; Keystone Iron Works v. Wilkie, 6 Kan. App., 654; R. R. Co. v. Parker, 112 Ala. 479; Hasbrouck v. Dickinson, 89 Hun., 607; Gay v. Tielkemeyer, 64 Mo. App., 112; Hangen v. Ry. Co. (S. D.), 53 N. W., 769; Brown v. Baird (Okla.), 48 P. 180; Furr v. Speed, (Miss.), 21 So. 562; Ry. Co. v. Lowery, 74 F. 463; Rogers v. Meinhardt (Fla.), 19 So. 878; Lewis v. Prien (Wis.), 73 N. W., 654; Vinton v. Schwab, 32 Vt. 612; McMullen v. Carson, 48 Kan. 263; 29 P. 317; Colo. C. & I. Co. v. John (Colo.), 38 P. 400; McQuown v. Thompson (Colo.), 39 id., 68; R. R. Co. v. O'Melia (Kan.), 42 P. 724; Ins. Co. v. Fisher (Cal.), id., 154.)
The agent informed the representative of the company when he paid the money that it was all the money he had; and during the time in question he had received for the company more money than that. The law will not presume that the agent embezzled the money he had received and not accounted for unless the payment was the money he had collected.
The court erred in excluding the instructions to agents, as they were referred to in the bond and formed part of the contract. (2 Ency. L., 462; Kurtz v. Forquer (Cal.), 29 P. 413; Humboldt, Etc., v. Wennerhold (Cal.), 22 id., 920; 2 Pars. Cont., 684; 2 Ency. L., 466; Hughes v. Sanders, 3 Bibb., 360; Nichols v. Douglass, 8 Mo. 49.)
The deposition of the agent was erroneously rejected by the court as immaterial and irrelevant. The testimony referred to several matters in issue. The company permitted the agent to pursue his business for them inconsistently with the instructions with which the surety was familiar; and it must be assumed that the parties contracted upon the basis of the general instructions. There was a substitution of new arrangements for the original ones. The surety was therefore discharged. (2 Pars. Cont., 812; 6 Wait's Act. & Def., 470.) The agency was limited to the city of Cheyenne, yet the agent was permitted to insure property in other places. That fact ought to be held to discharge the surety, as it increased the hazard of the business for which he had become surety. He has the right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and such is made, it is fatal to his liability.
W. R. Stoll, for defendant in error.
When the petition states the facts constituting the plaintiff's cause of action, a general denial does not raise the issue of payment. (18 Ency. L., 254, 255; Stoner v. Keith Co. (Neb.), 67 N. W., 311; Stevens v. Thompson, 5 Kan., 305; Marley v. Smith, 4 id., 155; Parker v. Hays 7 id., 412; Pomeroy's Rem., § 657; Esperson v. Hover (Colo.), 33 P. 1008; Clark v. Wick (Oreg.), 36 id., 165; Crawford v. Tyng, 30 N. Y. Sup., 907; Price P. House v. Pub. Co., 31 N. Y. Sup., 800; Pierce v. Hower, 42 N. E., 223; Lent v. Ry. Co., 29 id., 988; Glickman v. Loen, 45 N. Y. Sup., 1040; Ashland, Etc., v. May 71, N. W., 67; Hander v. Baade, 40 S. W., 422.) Where a party on cross-examination goes outside the examination in chief, he makes the witness his own and is bound by his answers. (1 Thomp. Tr. , § 432, 442, 443; 1 Green. Ev., § 449.) Plaintiff in error offered no evidence to establish payment. The pleading of specific defenses is a waiver of all other defenses. The instructions of the company to its agents form no part of the contract of the bond, and if the company does not cause them to be observed, will not discharge the surety on the agent's bond. (Ins. Co. v. Simmons, 131 Mass. 85; State v. Atherton, 40 Mo. 210; People v. Russell, 4 Wend., 570; U. S. v. Kirkpatrick, 9 Wheat., 720; U. S. v. Van Zandt, 11 id., 184; U. S. v. Nichol, 12 id., 505; Com. v. Tate (Ky.), 13 S. W., 113.) It is never a defense to a surety on a bond for faithful performance of duty as an agent, that the creditor himself was negligent or guilty of laches, or that the surety relied on the creditor not being so; and if such a defense is pleaded, it will be stricken out on motion. (Bank v. Owen (Mo.), 14 S. W., 632; State v. Atherton, 40 Mo. 210; People v. Russell, 4 Wend., 570; cases cited above; Minor v. Bank, 1 Pet., 46; Bank v. Root, 2 Met., 522; Board v. Judice (La.), 2 So., 792; McShane v. Bank (Md.), 20 A. 776; Lieberman v. Bank, 40 A. 382; Engler v. Ins. Co., 46 Md. 322.)
The plaintiff in error can not complain of the exclusion of the deposition of the agent, Richards, for it was only corroborative of the testimony of the representatives of the company as brought out by the plaintiff in error. Nothing in the bond forbade the agent from insuring property outside of Cheyenne.
The mere fact that the creditor indulges the principal by the extension of time does not relieve the surety; unless the extension is for a definite time, and is based upon a valuable consideration, moving from the principal to the creditor. The mere fact that the agent has difficulty in making collections, or that the creditor for any reason sees fit to indulge the principal in the matter of payments, is never sufficient to exonerate the surety. (Lake v. Thomas (Md.), 36 A. 437; Bank v. Owen (Mo.), 14 S. W., 632; Bank v. Traube, 75 Mo. 199; People v. Russell, 4 Wend., 570; 64 N.Y. 231; 68 N. W., 941; 33 N. Y. Sup., 695; 97 U.S. 318; 98 N.Y. 467; 21 id., 88; 6 How., 279; 23 id., 149; 13 N. W., 496; 58 N.Y. 541; 62 id., 88; 82 id., 121; 91 id., 353; 64 id., 385; 61 N. W., 107; 3 S. E., 817; 35 N. W., 10; 10 So. 539; 47 Ia. 357; 78 F. 866; 67 Mo. App., 210; 26 S. E., 63; 47 Pac. , 566; 40 S. W., 465; 12 S. E., 834; 34 F. 291; 51 N. W., 200; 45 P. 555; 66 N. W., 647; id., 470; 56 F. 281; 28 P. 842; 110 Mass. 163; 8 N. W., 457; 131 Mass. 85; 46 Md. 322; 51 N. Y. Sup., 226.)
On the 14th day of January, 1891, one Richards was appointed agent at Cheyenne, Wyoming, of the defendant in error insurance company whose principal place of business was at Manchester, in the State of New Hampshire. On the day mentioned, by requirement of the defendant company Richards executed a bond in the sum of five hundred dollars conditioned that, as the agent of the insurance company, authorized to receive sums of money for premiums, payment of losses, salvages, and collections, he would pay over such money correctly, and in every way faithfully perform his duties as agent in compliance with the instructions of the company through its proper officers. Plaintiff in error, Charles W. Riner, joined in the execution of this bond as surety for Richards.
In 1895, the insurance company sued plaintiff in error alone, and, as such surety in the district court of Laramie County upon said bond, and recovered judgment against said plaintiff in error for the sum of four hundred and seventy-eight dollars and forty-three cents, together with ninety-three dollars and twenty-four cents costs. From that judgment and an order denying him a new trial plaintiff appeals.
The material allegations in the petition are that Richards as agent violated the conditions of his bond in this; to-wit: that between the said 14th day of January, 1891, and the 7th day of October, 1893, at which time his agency was terminated, he received the money of said company amounting to the value of $ 649.05, and paid over and accounted for only $ 303.02 of that sum, leaving a balance due the insurance company of $ 346.03.
The insurance company, plaintiff below, as required by law, attached to its petition an account, which is as follows: --
Oct. 7, 1893.
W. A. Richards, Agent,
To New Hampshire Fire Insurance Company. Dr. To net premiums on policies issued--
Dec., 1892
$ 71.94
Jan., 1893
60.28
Feb., 1893
80.31
March, 1893
83.19
April, 1893
237.84
May, 1893
68.20
July, 1893
47.29
$ 649.05
Credit: --
By Cash July 24, 1893.
The answer of the defendant, plaintiff in error, here denies the...
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