Roberts v. NATIONAL SAV. LIFE INS. CO.

• Decision Date: 05 February 1935
• Docket Number: No. 10074.,10074.
• Citation: Roberts v. NATIONAL SAV. LIFE INS. CO., 75 F.2d 530 (8th Cir. 1935)
• Parties: ROBERTS et al. v. NATIONAL SAV. LIFE INS. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

75 F.2d 530 (1935)

ROBERTS et al. v.NATIONAL SAV. LIFE INS. CO. et al.^*

No. 10074.

Circuit Court of Appeals, Eighth Circuit.

February 5, 1935.

V. D. Willis and Ben C. Henley, both of Harrison, Ark., for appellants.

Robert C. Foulston and George Siefkin, both of Wichita, Kan., and J. Loyd Shouse, of Harrison, Ark., for appellees.

Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.

GARDNER, Circuit Judge.

This is an action brought by appellees as plaintiffs to recover upon a bond executed by the First National Bank of Harrison, Ark., as principal, and by the appellantsG. C. Coffman, A. T. Hudspeth, J. L. Sims, L. C. Holt, and T. L. Jackson as sureties.

It is alleged in the complaint that the First National Bank of Harrison, Ark., and the individual defendants executed to the National Savings Life Insurance Company their depository bond in the penal sum of $10,000, by which they guaranteed to the National Savings Life Insurance Company the return of all funds deposited and the faithful accounting for all money deposited with the said First National Bank by the said National Savings Life Insurance Company; that thereafter the said insurance company deposited with the said bank the sum of $5,000, which was evidenced by a certificate of deposit; that of said sum there was later withdrawn the sum of $1,240.95, leaving a balance on deposit with said bank in the sum of $3,755.05; that default was made in the payment of this balance; that the bank became insolvent and was taken over by the state bank commissioner of the state of Arkansas.

The individual defendants answered, denying the corporate existence of the National Savings Life Insurance Company, and denying its authority to do business in the state of Arkansas; denying that the plaintiffWheeler-Kelly-Hagny Trust Company was a Kansas corporation, or that it had been appointed receiver of the National Savings Life Insurance Company, or that it was authorized to act as receiver; denying that the bond was issued in consideration of deposits made by the National Savings Life Insurance Company in the First National Bank of Harrison, Ark., and denying that the First National Bank of Harrison executed the bond; denying the deposit; and denying the default.The answer admits that the individual defendants executed the bond, but alleged that it was so executed without consideration; that the National Savings Life Insurance Company had made settlement for their said deposit, thereby releasing and discharging the individual defendants; that the defendants had made demand upon the Wheeler-Kelly-Hagny Trust Company, receiver of the National Savings Life Insurance Company to bring suit against the principal, First National Bank of Harrison, Ark.; that this had not been done, and said defendants were therefore discharged.

On agreement of the parties, the action was tried to the court without a jury.At the conclusion of the trial, defendants filed written request for findings of fact and a request for the following as alleged declarations of law:

"1.A material change in the duties or obligation of a principal on a bond such as is sued on herein, by contract, entered into after the execution of the original bond sued on, discharges the sureties on the original bond.

"2.These defendants are sureties or guarantors on the obligation sued on.

"3.A stipulation for the payment of interest amounts to a material change in the duties of the principal where a prior contract of suretyship did not stipulate for the payment of interest."

These requests were denied, and the court entered judgment in favor of the plaintiffs on a general finding, and defendants have appealed, assigning various errors which challenge the sufficiency of the evidence to sustain the judgment, the only one requiring attention being as follows:

"That the judgment of the court was contrary to both the law and facts and more fully in the following particulars:

"(A) That the court erred in finding as a matter of fact that there was no new obligation entered into between the plaintiff and Peoples Savings Bank, in the form of certificates of deposit without the consent of defendants.

"(B) That the court erred in finding as a matter of fact that there was no material change in the original obligation of the partiesplaintiff and defendant.

"(C) That the court erred in finding as a matter of fact that the plaintiff failed, neglected, and refused to bring suit against the principal on the obligation sued on, after defendants had properly notified it to do so, under sections 8287and8288 of Crawford & Moses' Digest of the laws of the State of Arkansas.

"(D) That the court erred in finding as a matter of law that the defendants were not discharged on the original obligation, since after its execution by defendants, plaintiff entered into a new contract of deposit with the Peoples Savings Bank.

"(E) That the court erred in finding as a matter of law that the defendants were not discharged on the obligation, after plaintiff refused to sue the First National Bank after notice from the defendants.

"(F) That the court erred in finding as a matter of law that the defendants were not discharged on the bond sued on, after plaintiff had entered into a stipulation with the Peoples Savings Bank for payment of interest on the deposit which amounted to material change in the duties of the principal, where the prior contract of suretyship (the one sued on) did not provide for any interest."

It is observed that no error is assigned to the refusal of the court to make the so-called declarations of law requested by defendants.There was no motion for judgment nor for a declaration of law that defendants were entitled to judgment.The approval of ...