United States Fidelity & Guaranty Company v. Baker
| Decision Date | 04 November 1918 |
| Docket Number | 220 |
| Citation | 206 S.W. 314,136 Ark. 227 |
| Parties | UNITED STATES FIDELITY & GUARANTY COMPANY v. BAKER |
| Court | Arkansas Supreme Court |
Appeal from Washington Circuit Court; J. S. Maples, Judge; reversed.
Judgment reversed, and cause remanded.
O. P McDonald, for appellant.
1. Inasmuch as this is an action to recover from C. W. Baker on a written obligation signed by him and not denied upon oath appellant's case was fully made out, and no other proof was necessary. The receipt showed that appellant had paid the $ 500 and no fraud was alleged or proved. 30 Sou. 758. The shortage was proved and payment by the company. The evidence was sufficient, and the verdict is contrary to the law and evidence. 97 Ark. 442; 89 Id. 24, 29.
2. Exhibits 1 and 3 were improperly admitted, and the court erred in admitting Sam Beasley to testify to and read from the commissioner's sale record. It was not the best testimony.
3. It was error to give instruction No. 7. It was prejudicial. The judgment should be reversed and judgment should be entered here. 116 Ark. 423.
H. L Pearson, for appellee.
1. The facts in evidence are abundantly sufficient to show fraud practiced upon the rights of C. W. Baker. This was a question for the jury.
2. The verdict is supported by the testimony and there is no error in the instructions. 97 Ark. 438.
It is claimed by the appellant surety company that Grover Baker was employed as agent of the Illinois Central Railway Company, at Buckner, Illinois, and as such agent defaulted in the sum of $ 808.73, and that, prior to such defalcation, the appellant surety company had executed its bond to the railway company, conditioned that it would protect the railway company against loss growing out of the wrongful conduct of the said Grover Baker in the sum of $ 500. In consideration of this obligation to indemnify the railway company, C. W. Baker, an older brother of Grover Baker, living at Elm Springs, Arkansas, executed a bond to the guaranty company, by which he agreed to indemnify it against any loss it might sustain by reason of its bond to the railway company. The surety company paid the sum named in its indemnifying bond, and brought this suit to recover that payment, less the sum of $ 95.01, which it had collected on account of said alleged shortage. The bond executed by appellee to appellant contained the following stipulation: "I, C. W. Baker, of Elm Springs, Arkansas, hereby agree that I will protect and immediately indemnify the said U.S. F. & G. Company against any and all loss, damage and expense it may sustain or become liable for in consequence of such bond or bonds, and any renewal or extension thereof, hereby admitting that the voucher or other proper evidence showing payment by said guaranty company of any such loss, damage or expense, shall be conclusive evidence (except for fraud) against me and my estate of the fact and amount of my liability hereunder to said guaranty company.
(Signed)
C. W. Baker."
The answer contained a general denial of all of the allegations of the complaint.
It is undisputed that the surety company paid the railway company the sum of $ 500 on July 1, 1916, and took its receipt therefor, but the testimony is not free from conflicts, as to what the amount of the shortage really was, this conflict being made to appear in statements as to its amount, made by representatives of the railway company and the surety company.
The deposition of a traveling auditor of the railway company was taken, and he submitted a statement showing the date and amount and nature of each item of the alleged shortage, and this testimony appears to be uncontradicted except by the statements above referred to. It is unquestionably true that there was an increase in the shortage claimed, but it is explained by the auditor that this discrepancy arises out of the failure of the defaulting agent to enter all of his collections on his books.
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