Ætna Ins. Co. v. Monaghan

• Decision Date: 31 October 1866
• Citation: Ætna Ins. Co. v. Monaghan, 38 Mo. 432 (Mo. 1866)
• Parties: ÆTNA INSURANCE COMPANY, Plaintiff in Error, v. JAMES MONAGHAN, JOHN B. HENDERSON, AND JOHN M. MILROY, Defendants in Error.
• Court: Missouri Supreme Court

38 Mo. 432

ÆTNA INSURANCE COMPANY, Plaintiff in Error,

v.JAMES MONAGHAN, JOHN B. HENDERSON, AND JOHN M. MILROY, Defendants in Error.

Supreme Court of Missouri.

October Term, 1866.

Error to Louisiana Court of Common Pleas.

Glover & Shepley, for plaintiff in error.

I.The court erred in not giving the plaintiff's instructions.The case showed no defense for any maker of the bond.The “Actconcerning securities,” approved Nov. 23, 1855, R. C. 1855, p. 1453, is not applicable to the matter.

No surety can be relieved from liability on such a bond by giving notice to sue--§ 4 of same act, p 1455.The bond sued on is one to secure the performance of the duties of Monaghan as one having a “trust” or “business” to conduct.It is a bond with a collateral condition not“exclusively for the payment of money or the delivery of property.”

J. B. Henderson, for defendants in error.

I.It is true that the bond is one with a collateral condition; but so soon as forfeited by the failure of Monaghan to pay, and his removal from the position, it became a bond for the direct payment of the amount of the penalty.The penalty being due, the notice could be properly given; and having been given, the plaintiff's failure to sue in the prescribed time exonerates the surety.

II.The only condition of the bond sued on is for the payment of money received by Monaghan on account of the company and for the delivery of property that may come into his hands; and hence it is such an instrument as that a surety may be discharged from it by notice--R. C. 1855, p. 1455, § 4.

III.The covenant or agreement of Monaghan in this case was to pay money and deliver property.When his agency was terminated, there was no pretence that the bond required more of him than the payment of a certain amount of money.The obligation of the bond was to pay this money, and all bonds “for the performance of any covenant or agreement for the payment of money or delivery of property” come within the rule of the statute discharging the surety on notice--R. C. 1855, p. 1455, § 4.

WAGNER, Judge, delivered the opinion of the court.

This was an action commenced and prosecuted in the Pike county Circuit Court by the plaintiff in error against James Monaghan, John B. Henderson and John M. Milroy.It seems that on the 9th day of April, 1859, Monaghan was appointed agent of the insurance company in the city of Louisiana, Pike county, Missouri, and gave his bond in the penal sum of seven hundred and fifty dollars, with Henderson and Milroy as his sureties.The bond was conditioned that Monaghan should receive, as agent of said company, sums of money for premiums, payments of losses, salvages, collections for goods, chattels and other property, and also keep true and correct account of the same, and make regular reports of the business transacted by him, and in every way faithfully perform his duties as agent in compliance with the instructions of the company through its proper officers; and at the end of the agency, by any cause whatever, deliver up to the authorized agent of the company all its...