54 Ga. App. 547 | Ga. Ct. App. | 1936
The history and facts of this case before the last trial, under its two previous appearances in this court, are set forth in the decision by the Supreme Court in Nowell v. Monroe, 177 Ga. 648 (171 S. E. 136), answering questions certified by this court, in the decision of this court (47 Ga. App. 665), following those rulings, and in Mayor &c. of Monroe v. Fidelity & Deposit Co., 50 Ga. App. 865 (178 S. E. 767). In the decision of the Supreme Court, and the first decision of this court, it was in effect held, under the pleadings and facts as there stated, that the city had no fidelity bond on its employee with the defendant surety company, subsequent to the one executed for the year 1920, in which there was no defalcation by the employee; that the mere presentation by the company in subsequent years of invoices or bills for premiums due, and the payment and acceptance of premiums, would not effect valid contracts of fidelity insurance for those years; that "if renewals of the original bond were at all effectuated, the liability as assumed thereby was limited, as stated in the continuation certificate, to the amount of the original bond,” $2000; the company having relied on such continuation certificates so specifying, mailed each year by it to the city employees for the city, but the city having originally relied on the invoices and payments of premiums as creating renewals of the original bond, for
After the decision of the Supreme Court and the first decision of this court against the city, that there was no liability under the invoices and payment of premiums, the city, in October, 1933, before the remittitur was made the judgment of the trial court, offered an amendment to its petition, to the effect that the original bond was renewed by the issuance of the continuation certificates from year to year and the acceptance of premiums; that the company was liable thereunder for $3000 and interest; and that although the company had previously admitted its liability for the $3000, it now refused to pay the same. This amendment was disallowed. On review this court held that the amendment “was permissible;” and that it “contained an allegation which, if the plaintiff could sustain it by evidence showing an acceptance by the plaintiff of the continuation certificates, or by other competent evidence that the bond had been renewed by the continuation certificates, showed a right in the plaintiff to recover.” At the last trial
The previous second decision of this court, holding that the amendment, shifting the basis of liability from the rendition of invoices and payments of premiums to the issuance of the continuation certificates, was proper, and should have been allowed, and that the city was entitled to recover if these averments were sustained by evidence (50 Ga. App. 865), fixed the law of this case. At the present trial these allegations were sustained, not only by the evidence before the auditor, but by the admissions of the de
Judgment affirmed.