64 Ark. 189 | Ark. | 1897
(after stating the facts.) It seems clear from the evidence that, so far as appellant Byington is concerned, the claim of appellées is just and fully established. But this is an action upon a bond executed by Byington for the faithful performance of his duties as agent, and the question arises whether appellants, Roberts and Wilkins, sureties upon such bond, are by its terms liable for money loaned to said Byington before his appointment as agent, and the failure to pay which money involves no violation of his duties as such agent.
This bond, the material portions of which have been set forth in the statement of facts, contains, among other stipulations, the condition that Byington shall pay over “ all moneys which he now owes or may .hereafter owe said general agents, either on account of advances to him or otherwise.” The learned judge of the circuit court was of the opinion that, under this condition of the bond, the sureties were liable for money loaned to Byington before his appointment as agent, and before the execution of the bond, although such loan had no connection with his agency. If this language of the bond stood alone, we might concur in the ruling, but this general language must be construed with reference to the object and purpose'of the bond, which was made only to secure the faithful performance of duties assumed by Byington as agent of appellees and the insurance company. The words of the recital in the bond, “which afford the best ground for gathering the meaning of the parties,” make this purpose plain beyond question. Hassell v. Long, 2 Maule & S. 363.
Now it seems reasonable, when we consider the object and purpose of the bond, to construe the stipulation that Byington should pay over “all moneys which he now owes or may hereafter owe said general agents, either on account of advances to him or otherwise,” as having reference only to sums advanced to him or owed by him in connection with his agency, for the performance of the duties of which he executed the bond. In other words, as this bond was executed by Byington for the faithful performance of his duty as agent, and as the evidence shows that it was his duty, as agent, to solicit insurance and make collections for the appellees, and also that appellees, as general agents, were from time to time to make advances of money to Byington, to enable him to carry on the business of his agency, which advances he was under obligations to repay, we are of the opinion that his sureties are liable for his failure to pay over such collections and advances, and all other sums due in the line of Ms agency, but not for debts having no connection therewith. This construction, in our opinion, does no violence to the language of the bond, is in accordance with what seems to have been the intention of the parties, and is sustained by the adjudged cases, which show that general expressions in a bond may within reasonable limits be controlled by its recitals, and by a consideration of the object and purpose of the bond. Hassell v. Long, 2 Maule & S. 363, opinion by Lord Ellen borough; London Assurance Co. v. Bold, 51 Eng. Com. Law, 514; Sanger v. Baumberger, 51 Wis. 592; Bell v. Bruen, 1 Howard (U. S.), 169; 1 Brandt, Suretyship (2 Ed.), § 166; Murfree, Official Bonds, § 182, and cases cited.
Had the money been loaned to Byington in expectation of his appointment as agent, and for use in the line of his agency, there might be ground for holding the sureties liable therefor, although the loan was made before his appointment as agent, but the money was not advanced in anticipation of the agency'. At the time it was loaned, the appellees had no intention of' making Byington their agent, and the loan had no connection, with the agency.
Our attention is further called by counsel for appellees to a provision in the contract attached to and made a part of the bond,, to the effect that “said general agents may off-set, against any claims under this contract, any debt or debts due by said agent to said general agents.” If this was an action by Byington against appellees for a debt claimed to be due him, it is doubtless true that this item of $200 due them from him might be used as a set-off; but Byington is making no demand against appellees,, and it is not easy to see how this item is to be used as a set-off when he is claiming nothing against them. Nor can we agree with counsel that the evidence shows that appellees had already exercised this right of set-off by the application of sums due from them to Byington to the payment of this note. On the contrary, we think the evidence shows that this note for $200 loaned Byington is still unpaid, and' appellees are endeavoring in this action to hold the sureties liable for its payment, which they have no right to do.
If, from the amount of appellees’ demand, we deduct the two items amounting to $215.99, which the evidence tends to show was due from Byington.on matters having no connection with his agency, we have left the sum of $300.21. The evidence convinces us that this amount at least is due appellees, and the judgment to that extent is right. If, therefore, they •will remit the excess of the judgment above' this amount, the judgment for the remainder will be affirmed; otherwise, it will be reversed, and a new trial ordered.