Southern Surety Co. v. York

• Decision Date: 01 December 1924
• Parties: SOUTHERN SURETY COMPPANY, Appellant, v. CHARLES L. YORK, Respondent.
• Court: Kansas Court of Appeals

267 S.W. 44

218 Mo.App. 629

SOUTHERN SURETY COMPPANY, Appellant, v. CHARLES L. YORK, Respondent.

Court of Appeals of Missouri, Kansas City

December 1, 1924

Appeal from the Circuit Court of Vernon County.--Hon. B. G. Thurman Judge.

AFFIRMED.

Judgment affirmed.

John P McCammon for appellant.

A. E Elliott for respondent.

OPINION

ARNOLD, J.

This action seeks to recover premiums alleged to be due on an executor's bond. Defendant was appointed executor of the estate of Caroline York, deceased, in December, 1916, by the probate court of Cedar county, Missouri. He was duly qualified and through a broker applied to the Springfield, Missouri, agency of the Southern Surety Company of Oklahoma to execute his bond as surety, which it did.

In 1918 the Southern Surety Company of Oklahoma effected a reinsurance agreement with the Southern Insurance Company of Iowa which was approved by the Insurance Department of Missouri, and a merger thereby was consummated under the terms of which the latter company took over the assets and liabilities of the former.

Defendant paid the original premium and one annual premium thereafter, after which and on March 11, 1918, the last of the funds of the estate were distributed under order of the court and the proceeds of the estate were exhausted. One R. E. Porta was the local agent of the Surety Company through whom defendant secured the services of the bonding company. Said Porta was also cashier of the bank at Jerico Springs, Cedar county, Missouri, wherein the estate funds were deposited. Porta countersigned all the checks issued in respect to the management of the estate of said Caroline York, deceased. After said estate was exhausted the executor filed his final report and settlement, but filed no receipts for the last two distributive items which were paid by checks which were cashed and returned to Porta, and were not in the hands of defendant at the time of final settlement. These checks were not filed with the probate court until 1922, and on January 28, 1922, said court ordered final discharge of the bond in question. It is the contention of plaintiff that no payment of premiums for the bond was made for a period beginning November 27, 1918, to the date of said order of final discharge. The petition prays judgment for $ 116.54 covering this period.

Defendant's contention is that the cancelled checks were at all times in the hands of plaintiff's local agent who knew when the estate was exhausted and that there was thereafter no further liability on the bond. Other defenses pleaded need not be referred to in this opinion. The reply was a general denial.

The petition was filed in the circuit court of Vernon county where the cause was tried to the court without the aid of a jury. Plaintiff asked the following declarations of law:

"The court declares the law to be that under the evidence the plaintiff should recover."

"The surety company could not be released on its bond until the defendant filed the receipts of the distributees and defendant was obligated to pay the annual premiums on the bond until his discharge."

Said declarations of law were refused by the court and judgment was rendered for defendant. A motion for new trial was unavailing and plaintiff appeals.

In his brief defendant attacks the sufficiency of the abstract of the record, charging the record filed by appellant is not full and does not show important evidence introduced at the trial. In support of this contention it is pointed out that an insufficient and garbled abstract setting forth...