"This is a suit on a fidelity bond given by James E. Ferguson, treasurer of the Naylor Special Road District, as principal, and the defendant Fidelity & Deposit Company, of Maryland, as surety. The suit originated in the circuit court of Ripley county, and was transferred to the circuit court of Dunklin county upon a change of venue. James E. Ferguson was one of the original defendants, but the action was dismissed as to him. Upon due trial before the court without a jury, judgment was thereafter rendered against defendant Fidelity & Deposit Company in the sum of $1,773.44, together with $300 as reasonable attorney's fees. From this judgment defendant has appealed.
"The petition in this case sets forth that plaintiff is a special road district duly organized under the laws of this state; that defendant is a corporation of the state of Maryland and engaged in the business of making and executing fidelity bonds for money consideration; that on the 10th day of February, 1930; James E. Ferguson was duly appointed treasurer of said special road district for one year, ending on the 10th day of February, 1931; that as such treasurer he was the legal custodian of the funds belonging to the district; that prior to the 20th day of February, said James E. Ferguson applied to defendant Fidelity & Deposit Company for an official and statutory bond as treasurer of said district in the sum of $4,000; that on said date plaintiff paid defendant the sum of $20, the usual and customary premium by it demanded for making and delivering, as surety, said official and statutory bond, for a term of one year as above stated; that said bond was to be conditioned that James E. Ferguson, as treasurer, would render a faithful and just account of all money that might come into his hands as such treasurer; that defendant accepted and retained said premium and became surety on said bond. It is further alleged that:
"`The defendant Fidelity & Deposit Company of Maryland, falsely, fraudulently, and willfully, failed and neglected to make, execute and deliver such a bond, but on the contrary, falsely, fraudulently and willfully made and executed a bond entirely different from that called for, or purchased by plaintiff; that the oblige named in the bond so executed is not in existence; and that, the plaintiff, its officers and agents being, as the defendants well knew, uninformed to the contrary, were thereby misled and deceived, and relying upon said false and fraudulent declaration, deeds, acts, and misrepresentations of the defendants, did not insist upon the making and delivering a formal written, statutory and official bond and contract, as hereinabove mentioned, and that no such formal written undertaking, contract, or bond was ever executed or delivered by the defendants as principal and surety respectively, to the plaintiff, on the 10th day of February, 1930.
"`Plaintiff states that, on the 19th day of November 1930, said James E. Ferguson, had in his hands as such treasurer, the sum of One Thousand Seven Hundred and Seventy-Three and 44/100 Dollars ($1,773.44), which said money belonged to and was the property of the plaintiff; that, thereafter a demand was made upon the defendant James E. Ferguson for an accounting, and for the sum of One Thousand Seven Hundred and Seventy-Three and 44/100 Dollars ($1,773.44); that said James E. Ferguson failed, neglected, and refused to account for and to pay unto the plaintiff herein, the said sum, or any part thereof; and that the same remained wholly due and unpaid to the damage of the plaintiff in the said sum.'
"It is further alleged that plaintiff made demand upon said defendant surety company to answer for the default of said treasurer, and payment was refused; that said refusal was without just cause and vexatious. The prayer of the petition was to the effect that the defendant be required to deliver to plaintiff an official statutory bond and that plaintiff be given judgment in the sum of $1,773.44, with interest, together with a reasonable attorney's fee and costs.
"Defendant's answer, among other things, states that defendant made and executed a surety bond with James E. Ferguson
as principal, binding themselves to pay the Naylor Special Road District the sum of $4,000, upon certain conditions therein expressed; that said bond contained the following additional provision, to wit: `Second: That the Surety shall not be liable hereunder for the loss of any public moneys or funds occurring through or resulting from the failure of, or default in payment by, any banks or depositories in which any public moneys or funds have been deposited, or may be deposited by, or placed to the credit, or under the control of the Principal, whether or not such banks or depositories were or may be selected or designated by the Principal or by other persons.' The answer further sets up that said bond was duly approved and accepted by said plaintiff road district containing said provision; that said exception was a matter of contract, and by virtue thereof defendant surety is not liable on said bond for the reason that said treasurer and principal in the bond deposited the funds of said road district in the State Bank of Naylor, which had theretofore been selected by said road district as the depository of the funds of said district; and that said James E. Ferguson failed to account for said sum of $1,773.44, belonging to said district and so deposited in said bank because of the failure of said bank on November 19, 1930.
"There was an agreed statement of facts filed in the case, which statement is as follows:
"`1. That plaintiff is a special road district, incorporated and organized as set out in the plaintiff's petition and in the defendants' answer.
"`2. That James E. Ferguson was duly appointed treasurer of Naylor Special Road District of Ripley County, Missouri, for a term beginning on the 10th day of February, 1930, and ending on the 10th day of February, 1931, and as such treasurer had received and collected the moneys and funds of said Special Road District and had custody thereof.
"`3. That on the 19th day of November, 1930, the said James E. Ferguson as treasurer of Naylor Special Road District of Ripley County, Missouri, had on deposit in the State Bank of Naylor, Naylor, Missouri, the sum of Seventeen Hundred and Seventy-Three and 44/100 Dollars ($1,773.44), the moneys and funds of said Naylor Special Road District of Ripley County, Missouri, and that the same was carried on the records of the said bank under the name of "James E. Ferguson, Treasurer."
"`4. That on said 19th day of November, 1930, James E. Ferguson, as such treasurer, of said Special Road District was called upon to account for said sum of money, but that he was unable to do so, because of the failure of said banking institution, and default in payment by said bank of said sum of Seventeen Hundred and Seventy-Three and 44/100 Dollars, ($1,773.44), and that said bank is now in the hands of the State Finance Department for liquidation, and that there will be no dividend paid on said deposit, and that said fund is a total loss; that said State Bank of Naylor failed and ceased doing business on said 19th day of November, 1930, and before said James E. Ferguson, as such treasurer of said Special Road District, was called on to account for said moneys.
"`5. That plaintiff, Naylor Special Road District of Ripley County, Missouri, paid the premium demanded by the Fidelity and Deposit Company for making, executing and delivering said bond.
"`6. That on or about the 10th day of February, 1930, the defendant, Fidelity & Deposit Company, executed and delivered to the Naylor Special Road District of Ripley County, Missouri, the bond hereto attached as being the official bond of said James E. Ferguson, as such treasurer, of Naylor Special Road District of Ripley County, Missouri.
"`7. That all the funds belonging to said Special Road District were by the treasurer thereof deposited in the State Bank of Naylor, Missouri, and that said James E. Ferguson was directed by the Board of Commissioners to deposit said funds there, the said bank having theretofore been selected by the Board of Commissioners of said Special Road District as the bank and depository of the funds of the said Naylor Special Road District of Ripley County, Missouri.
"`8. That said sum of Seventeen Hundred and Seventy-Three and 44/100 Dollars ($1,773.44) was all the funds, and the full and total amount of all the moneys that said James E. Ferguson as such treasurer of Naylor Special Road District of Ripley County,...
