187 Iowa 1250 | Iowa | 1919
I. Action brought by plaintiff and appellee, a bonding company, against the defendant, to enforce the payment of premium upon a surety bond issued to the defendant about November 30, 1910. The first annual premium was paid, and the claim of the plaintiff is for renewal premiums only. This claim is based upon the failure to furnish satisfactory proof that the liability of the plaintiff had been terminated. The provisions of the application for the bond are relied upon for recovery. It states defendant agrees to pay the premium for the first year and for each year thereafter in advance, and that the applicant
“I do also agree that said company may inquire of the beneficiaries of this trust as to the final settlement of the trust, or in regard to the management of the same.”
Plaintiff alleges, and it is true, that no renewal premium has been paid. It alleges further that no such evidence has been furnished, and it demands judgment for the aggregate of the renewal premiums, with interest.
In answer, defendant admits signing this application, but he denies that he thereby became obligated to pay the plaintiff the compensation or premium for said bond, and alleges that, on the contrary, it was understood and agreed between plaintiff and defendant that defendant was not to pay said compensation or premium, but that the same was to be paid by the second parties to the certain contract to secure which said bond was issued; and defendant alleges that said application was made and said bond issued for the following purposes, and upon the following conditions, to wit: One Collier, as party of the first part, and others named as parties of the second part, and this defendant as party of the third part, had entered into a written agreement whereby parties of the second part in writing obligated themselves to pay second parties for lands in the state of Texas purchased of second parties; that it was agreed between first and second parties that this defendánt, as third party, should act as trustee, under power of attorney from both first and second parties; that, as such third party, defendant should make to the first party a bond of indemnity for the faithful performance of his duties, and that the parties of the second part should pay all expenses of third party in carrying out the contract; that defendant, at request of
IV. Of course, assuming that the agent was authorized to make the claimed representations, evidence of their having been made would be receivable on an issue to reform the writing. Appellant claims such an issue was made. If it was ever tendered, it seems to have been abandoned; the trial proceeded at law, without the trial of any equitable issue; and we find no brief point dealing with reformation.