77 Miss. 851 | Miss. | 1900
delivered the opinion of the court.
In 1895 appellants became sureties on the bond of an agent of appellee at Port Gibson. The bond is conditioned for the faithful discharge of duty by the agent, and particularly that he should faithfully pay over moneys received.
The agent commenced to be short in his accounts in August, 1896, and he increased his shortage nearly every month up to and including December, 1897. ' By a letter of January 13, 1S98, the company, by its superintendent at Nashville, Tenn., notified the sureties of a shortage of $387.85. They at once saw the agent, who acknowledged the shortage, but told them-it liad all occurred in December, 1897.
Subsequently to this statement by the agent, the sureties received another letter from .the superintendent, which bore date of February 2d, 1898, and concluded in these words: “Our New York authorities have been urging this matter for several months, and I fool that I can no longer defer it.”
Subsequently to the receipt of this the sureties, in the same month (February, 1898), paid the shortage.
Tn August, 1898, they wrote to the company for a statement
The basis of their claim is that it was the duty of the company to have notified them of the defalcation for September, 1896, and that, because of this neglect, they were not liable to pay, and that, having paid in reliance on the truth of the agent’s statement that the whole shortage was for December, 1897, they now have the right- to recover the payment.
The court below excluded all their evidence and gave a peremptory instruction for the telegraph company.
If the sureties relied on the statements of the principal in their bond, it was their own carelessness. He could in no way bind the company, the obligee of the bond, by anything he might say to his sureties about, his defalcation. This was a matter in which he, together with his sureties, were in a position hostile to the company. They paid with full notice in writing that the defalcation extended over several months, and cannot recover the money paid. Recovery may be had where payment is made under an innocent mistake of fact where ordinary prudence is exercised, but not, as in this case, '«diere extreme carelessness is shown. Bulkley v. Stewart, 2 Am. Dec., 57; Morris v. Torin, 1 Am. Dec., 233; Hall v. Schultz, 4 Ib., 270; 27 Maine, 419; Wood v. Patterson, 4 Md. Ch., 335.
It is important that controversies be settled, and objections to claims must, be seasonably urged. There was no fraud or deceit practiced by the telegraph company. It made its claim with full notice that the shortage was of several months’ standing. It was certainly entitled to the $78 of shortage for September, 1896, in any event. The sureties voluntarily paid the whole claim without- objection. They need not have paid it without full information and accounting, but chose to do so, and must abide by thoir payment.
Affirmed.
