Truax v. Capitol Life Ins. Co.
| Citation | 1933 OK 596,26 P.2d 755,166 Okla. 153 |
| Decision Date | 07 November 1933 |
| Docket Number | Case Number: 22533 |
| Parties | TRUAX v. CAPITOL LIFE INS. CO. |
| Court | Supreme Court of Oklahoma |
¶0 1. Appeal and Error--Review--Sufficiency of Evidence to Support Judgment in Law Action Tried to Court.
In a law action where trial by a jury is waived, the finding and judgment of the trial court will not be disturbed on appeal because of the insufficiency of the evidence, if there is any evidence reasonably tending to support such judgment and finding.
2. Principal and Surety--Action on Surety Bond--Bond Held to Provide for Attorney's Fee in Addition to Amount of Penalty Provided.
In an action on a surety bond in which the sureties acknowledged themselves to be held and firmly bound in the sum of $ 2,500, together with ten per cent. attorney's fees, if suit be instituted under the bond, "together with" means "in addition to," and the trial court did not err in granting judgment against the sureties thereon for $ 250 attorney's fees in addition to the full amount of penalty provided in the bond.
Appeal from District Court, Oklahoma County; Tom G. Chambers, Judge.
Action by the Capitol Life Insurance Company against H. D. Truax and another. Judgment for plaintiff, and defendant named appeals. Affirmed.
Wilson, Wilson & Owens, for plaintiff in error.
Embry, Johnson, Crowe & Tolbert, for defendant in error.
¶1 This action was commenced in the district court of Oklahoma county by the Capitol Life Insurance Company, a corporation, against James B. Holmes and H. D. Truax. A jury was waived and the cause tried by the court, who rendered a judgment in favor of plaintiff, from which the defendant Truax has appealed. The parties will be referred to as they appeared in the trial court.
¶2 The defendant James B. Holmes was employed by the plaintiff on January 23, 1928, as an insurance soliciting agent, and on the following day a surety bond was executed to plaintiff by James B. Holmes, as principal, H. D. Truax and W. L. Marley, as sureties, in the sum of $ 2,500. The condition of the bond was the faithful performance of the duties of an insurance agent on the part of said Holmes in paying and accounting for all funds coming into his hands as agent for the company. W. L. Marley was not made a party to the action.
¶3 This is an action against Truax on the bond and against Holmes for a balance due on account, in which it is alleged that the said Holmes is indebted to plaintiff in the sum of $ 4,875.53, which represents funds received by him as agent for plaintiff which he did not account for. The trial court rendered judgment in favor of plaintiff and against Holmes for the sum of $ 4,522.14, deducting the sum of $ 353.39 on account of certain premiums on policies which were issued but were never delivered. The court entered judgment against H. D. Truax for $ 2,500, with interest, and $ 250 as attorney's fees. Defendant Holmes did not appeal and the plaintiff has filed no cross-appeal; therefore, the only issues involved in this appeal relate to the liability of defendant H. D. Truax as a surety on the bond.
¶4 Defendant contends, first, that there was a misjoinder in the causes of action in that the action against Holmes was on a debt and against Truax on the bond. There is no merit to this contention. Under the provisions of section 199, C. O. S. 1931 (sec. 266, C. O. S. 1921), causes of action arising out of the same transaction or transactions connected with the same subject of action, affecting all of the parties to the action, may be united in the same petition. State ex rel. Sheel v. Ingram, 164 Okla. 244, 23 P.2d 648. See, also, Small Radio Co. v. Southwest General Electric Co., 141 Okla. 282, 285 P. 17; Meshek v. Cordes, 164 Okla. 40, 22 P.2d 921.
¶5 Defendant further contends that being a noncompensated surety, he is entitled to stand upon the strict letter of the contract, and that certain changes made in the contract by the parties thereto, without his knowledge or approval, exonerated him from any liability on the bond. In this connection, the trial court found that there had been no change whatever in the contract...
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