151 N.W. 890 | S.D. | 1915
Lead Opinion
It will be noted that the defalcations of the said Nesbit are alleged to have taken place between the 18th day of January, 1912 —one year prior to- the execution of the -bond' — and the 24th day of February, 1913. It is claimed by appellant that this allegation fails to show any liability against the appellant, because, admitting the -defalcations to hav-e taken place between the dates named, still the entire loss may have occurred before the execution of the bond, and, for that reason appellant would not be liable. On the other hand, it is contended -by respondent that, under the allegations of the complaint, at least a part of the sums of money so misappropriated were misappropriated after the execution of the bond, and that, so far as such sums are concerned, the -complaint does state a cause of action. This is upon the theory that, where a series of acts are alleged to have occurred between two- dates, it will be presumed that the first and last acts occurred, respectively, on the first and last dates named. But we know of no such presumption of law. Of course, under the allegations of
Our attention has been called to but two cases where a question similar to the one presented here was considered by the court. Supreme Council Catholic K. of A. v. Fidelity & Casualty Co., 63 Fed. 48, 11 C. C. A. 96, was an action to recover on a fidelity bond. The bond sued on was accepted iby the company on the 20th clay of July 1891. It contained a recital that it was “made July 1, 1891,” and, on the back of the bond was indorsed: “Date of bond July 1, 1891; expires July 1, 1892.” The bond was dated July 19, 1891, but the company received a .premium covering one year, expiring July 1, 1892, and the court held that the bond was in effect from July 1, 1891, to July 1, 1892, and covered losses that occurred between the 1st and 10th of July, 1891. Dorsey v. Fidelity & Casualty Co., 98 Ga. 456, 25 S. E. 521, was an action on a fidelity bond wherein the surety company covenanted to indemnify the receiver of a railroad for the failure of his employes, upon the termination of their employment, to deliver to said receiver any property in their hands to which the receiver was entitled. A certain employee failed, upon terminating his employment, to deliver to the receiver property to which the receiver was entitled1, but it appeared that the property in question had been wrongfully delivered to a third party before the bond was executed, and the court held that the receiver was not entitled to recover. Neither of these opinions support the position of respondent.
The complaint fails to state a cause of action upon either theory advanced Iby respondent, and the demurrer should have been sustained.
The order appealed from is reversed.
Concurrence Opinion
(concurring). The question upon the demurrer ir this case is, not whether plaintiff might be able to prove that
Do the facts thus admitted affirmatively show that plaintiff is entitled to a judgment? The answer is — if the -term’s of the bond entitle plaintiff to recover for a -defalcation, occurring prior to the- giving of the -bond, such facts would conclusively show its right to a judgment. But if the terms of the bond entitle plaintiff to recover only for a defalcation occurring between January 18, 1913, and February 24, 1913, then plaintiff has not affirmatively shown facts that entitle it to recover.
This court, I think, correctly -holds as matter of law, that under the terms of the bond plaintiff can recover only for a defalcation occurring within the bonded period. Suppose, then, that plaintiff had shown conclusively, by evidence, that a defalcation had occurred, but had wholly failed to show that it occurred within the bonded period — would it be entitled to a judgment? Clearly not. This is exactly -the situation .presented by the demurrer. In -the first instance the evidence woul-d be too indefinite and uncertain; in the second, the facts alleged are too indefinite and uncertain. In neither case are all the necessary elements of a cause of action shown. In-such cases a demurrer will lie. Connersville v. Connersville Hydraulic Co., 86 Ind. 235; Phillips v. Sonora Copper Co., 90 App. Div. 140, 86 N. Y. Supp. 200; Millican v. McNiel (Tex. Civ. App.) 50 S. W. 428; Reid v. Lyttle, 150 Ky. 304, 150 S. W. 357.
The “in-definiteness” and “uncertainty” in the allegations o-f this complaint are not such that “the precise nature of the charge or defense is not ap-peren-t.” The “precise nature of the c-harge,” the purpose of the action, is 'shown to be ,a recovery for" a defalcation, upon an indemnity bond, but the facts alleged are insufficient to show a liability on the bond. The “-precise nature of the charge” being apparent on the face of the pleading itself, section 137, Code Civ. Pro-c., is not necessarily applicable or con
Dissenting Opinion
(dissenting). I am of the view that-the tidal court committed no- error -in overruling the- demurrer. The complaint is indefinite and uncertain as to the matter of time, but that is- not a ground for general demurrer. It should have been attacked by a -motion to make more definite or by a motion for a bill of -particulars. 2 Wait's Prac. 486. Prindle v. Caruthers, 15 N. Y. 425; Rev. Code Civ. Pr. § 137. The majority opinion contains this language:
“Of course, under the allegations of t-he complaint, it is possible that some, or even all, of the acts complained of may have occurred after the bond was executed; but, on the other hand, it is just as -possible that all the acts complained of occurred prior to the execution of the bond, and for which appellant would not be liable.”
Under this state of affairs, I am- of the view that the demurrer was properly overruled. If the allegations are susceptible to two constructions, one constituting a valid cause of action and the other not, a motion, and not a demurrer, is the proper remedy. Stieglitz v. Belding, 20 Misc. Rep. 297, 45 N. Y. Supp. 670; Hart v. Neillsville, 125 Wis. 546, 104 N. W. 699, 1 L. R. A. IN. S.) 956 4 Ann. Cas. 1085. The test, under the reform code
“Suppose, then, that plaintiff had shown conclusively, by evidence, that a defalcation had occurred, but had wholly failed to show that it occurred within the bonded period — would it be entitled to a judgment? Clearly not.”
I fully agree with that proposition, for under that supposition the matter of time would be reduced to a conclusive certainty. If the complaint in question contained no statement as to the time of the alleged defalcation, it would be clearly bad. But that is not the fact in this case. There is a surplus of time alleged in this case. What I am contending for is this: That under the complaint in question, in the absence of a motion to make the same more definite, the plaintiff would have been entitled, on the