United States Fidelity & Guaranty Co. v. White

• Decision Date: 24 November 1913
• Docket Number: 16,176
• Citation: 63 So. 329,106 Miss. 28
• Parties: UNITED STATES FIDELITY & GUARANTY CO. v. F. L. WHITE
• Court: Mississippi Supreme Court

63 So. 329

106 Miss. 28

UNITED STATES FIDELITY & GUARANTY CO. v. F. L. WHITE

No. 16,176

Supreme Court of Mississippi

November 24, 1913

APPEAL from the circuit court of Neshoba county, HON. C. L. DOBBS Judge.

Suit by United States Fidelity & Guaranty Company against F. L White. From a judgment for defendant, plaintiff appeals.

Plaintiff was surety on the bond of defendant, who was an employee of the Newton Oil Company. The oil company claimed that the defendant had defaulted as its employee and made demand on plaintiff as defendant's bondsman for the amount of the defalcation. Plaintiff paid the amount demanded and, on defendant's failure to reimburse it, sued on the contract.

Plaintiff introduced in evidence the contract between plaintiff and defendant, which is an application for bond, the bond, the sworn itemized account showing defendant's indebtedness to the oil company, and the receipt from the oil company to plaintiff, in satisfaction of defendant's defalcation. Defendant objected to the introduction of the receipt because the seal of the company (a corporation) is not attached to same. The receipt is in the following language "Received of the United States Fidelity & Guaranty Company the sum of nine hundred and eighty-nine dollars and seventy cents in full of all claims and demands on account of F. L. White hereunder. Newton Oil & Mfg. Co., by F. M. Hunt Vice President." The court sustained the objection to the introduction of this receipt and thereupon H. L. Austin one of the attorneys for the plaintiff, testified as a witness that he was present at the time the receipt was signed and that it was signed after draft had been delivered to the oil company covering the alleged shortage of defendant. This witness testified he was acquainted with Mr. Hunt, the treasurer of the oil company, and recognized his signature. When asked his initials, he said Mr. Hunt's name was W. H. Hunt. After the plaintiff's testimony was in, the defendant moved to suppress the evidence and grant a peremptory instruction for defendant, which motion was sustained by the court.

The application for bond contains the following provision, to wit: "I hereby agree . . . to protect and indemnify the said company against any loss, damage, or expense that it may sustain or become liable for in consequence of such guarantee on my behalf by said company and forthwith, after the said company shall have paid the party or parties entitled to the same any money under or by reason of such guarantee, to repay the said company the amount so paid, and all other losses costs, damages, and expenses, if any, that it shall have incurred or become...