159 N.W. 869 | S.D. | 1916
Defendant surety company entered into- a written contract, whereby it purported tO' indemnify the Wasmer Fruit Company against any loss it might suffer by reason of the fraud or dishonesty of defendant Nesbit while said Nesbit was serving the fruit company as its cashier and manager. The bond in its bod}'’, purported to be the several bond of Nesbit as principal and the surety company as surety, but was executed, by the surety company only. Alleging' that defendant Nesbit had misappropriated some $2,447.85 of its moneys, the .plaintiff sought recovery against Nesbit for the amount of such appropriation and against the surety company, upon the bond, for the amount named in such bond, $2,000. Verdict was directed in favor of plaintiff for $1,891.85. From the judgement on -such verdict and from an order denying a new trial, this appeal was taken ’by the surety company.
“The all-sufficient, the conclusive, arfswer to the suggestion that the subject of the warranty or of the condition precedent is*10 immaterial, and i'ts breach without effect, is that the parties had the • right to agree and they have contracted otherwise. The immaterially of a warranty or of a condition precedent made by the agreement of the parties, and the innocuousness of a failure to perform it, do not nullify or mitigate the fatal effect of the failure prescribed by their contract.”
“Provided, however, that the second party shall in no instance be liable for any default of the aforesaid first party unless his books and accounts with and for said third party shall have beeti examined and checked up not later than the 18th day of each and every month commencing with next month after this date, which said examination shall Ibe made by some officer, agent pr representative of the said third party and without expense to this second party.”
It seems clear that by express language the condition contained in this paragraph was made a condition precedent. There could be no liability until the books and .accounts 'had “been examined and checked up,” which examination and checking must take place each month prior to the 18th day thereof. There is no evidence that such books and accounts were examined and checked up each month and at the time agreed. An examination of purported copies of such books and accounts was made monthly. That was no compliance with the contract. To examine copies furnished by Nesbit left an open door for the concealing of the true status of the books and accounts. The books and accounts themselves were examined. When is not shown. Sometimes they were examined every two weeks, sometimes not for a period of five or six weeks. Of course examinations made in compliance with the contract may not have led to any earlier discovery of Nesbit’s defalcations, 'but it was not incumbent on appellant to show that it would. Respondent saw fit to accept this bond with this provision therein. It devolved on it to comply with its terms.
As there must be another trial of this cause, we deem it best to note that there was included within the verdict directed by
The judgment and order appealed from are reversed as to the appellant A'Vestern Surety Company.