*1 (Tes. busy 4.Indemnity preclud- ing dose, <§=>9(I) -Principal will be held we veri — denying liability pay- ed from to assured for during attending re- matters to other forged agreement. ment of view of check.in days term, maining the writer has Where, contemporaneously execution very discussion of in been grounds brief surety bond, principal of as- to hold Ordinarily I defer dissent. of his sured harmless from all loss suffered or my learned associates of to the conclusions payment curred assured of and to which them in cases drawn to-any certain lost checks appreciate study. given special I have payment title, asserting right, for study Associate Justice exhaustive 'DUNKLIN agreement therein, precluded or interest ,given on both has asserting from that he was defense hearing rehear- paid checks, motion for not liable to assured for sums though forged, even ing,- and such bar- fault find with have no I by principal against pay- red suit for assured con- opinions him in ing such checks. isus main between difference clusions. as arguments n 5.Trial counsel used <g=>351 (2) to whether waived —Plaintiff below, of said fees, action plaintiff attorney’s and the for where issue not submitted testimony, jury. tendering consti- in counsel does, in thinks it plaintiff error. He tute reversible Where bond request CONNER-agrees; did I do not the submission which Chief Justice attorney’s fees, the issue of allowance of think so. not submitted, plaintiff such issue was not waived "its to recover therefor. Rehearing. Appeal 6. <§=>747(2),878(1) —De NEW OF CO. CASUALTY appealing judgment fendant not from on his1 11166.) ( No. HARRISON. YORK plea over, filing nor cross-assiqnments error, cannot assert contention thereunder Port Worth. Appeals Texas. (Court Civil appeal. Rehearing June Denied May 16, 1925. Where defendant did not from 1925.) judgment rendered, plea over, him his or error, cross-assignments nor file either in appli- <®=>I27(3) Stipulation 1. Contracts reviewing court or in was in no surety conclusiveness as to for cation position peal. ap- to assert contention thereunder on applicant’s extent fact evidence public contrary to liability, policy. void not Appeal Court, from District Tarrant Coun- ty; Young, Judge. for Bruce contained A stipulation pay- any proper surety evidence bond Fidelity Casualty Company Action con- shall be losses ment against Sidney of New Yo’rk M. Harrison. evidence clusive plaintiff, From a for in the sum of applicant’s under extent of only $10, -plaintiff appeals. Judgment re- against public agreement, not void formed. good surety proof policy, and through assured, of losses faith to Capps, Hanger Short, Cantey, D.W. though checks, forged, created of lost Smith, Scarborough, and Warren all of Fort liability thereunder. defendant’s Worth, appellant. for Wade, Greathouse & Dow and Herbert C. <§=>909(5) error —Presumed Worth, appellee. all of Fort surety re- that assured good faith, therefor imbursed assured by pleadings. raised where such DUNKDIN, J. This suit was instituted company against by surety defend- In action of New principal’s to in- principal, on ant City Sidney York M. Harrison to by it demnify surety sustained loss plain- cover out assured to save bond under Express Company tiff to the American lost certain loss from held, fraud or want will be virtue of the terms issue oi not raise defendant did where principal, good pleadings, faith plaintiff surety, from assured reim- only faith and in favor of the good faith. assured therefor for, bursed $10 of amount sued pealed. <§=>14 knowl- of common 3. Evidence —Matter year Í918, During pur- edge business men often that shrewd the American in chased of through passage forged swindled, instru- France, Paris, office travelers’ checks ments. company payable legal issued knowledge a matter of common countersigned by are, holders when the defend- often business men swindled shrewd forged ant, passage ranging through denominations instruments. different from Digests Key-Numbered topic all and KEST-NUMBER. oases see same Indexes other <&=»For *2 Tex.) CO. OF NEW YORK v. HARRISON CASUALTY S.W.) (274 . upon forged each, aggregating and therefore $200, $930. made were indorsements and to $10 City Ms York unauthorized. New defendant’s return to Tex., Worth, and made The case was tried before a home route to Fort February 4,1919, special re- to verdict was application, answer to issues a dated written pay- forgery sustaining Company as Express the turned the defense of the American ment of except de- which to all the checks which one amounts of the destroyed, forgery. and That fendant testified was not a been lost or he claimed had by from disposed The com- was the basis him. verdict of the not been by plaintiff. prosecuted pay sur- pany agreed which the same without the to defendant, time, if the de- The court further decreed that checks at the render of the any Harrison, the recover with was not entitled to to it a bond fendant would execute Fidelity , company. express against Casualty Company York as the of New amount indemnity by indemnify the de- The bond executed the to surety, by by against reason fendant with the as after it losses sustained defendant, Sidney stipulating M. the haying paid to checks that the of the the amount principal surrender- com- Harrison, and the and defendant without pay pany bond Ameri- ing the The are bound them at that time. City, and, having required York furnished can New so York, $1,020, accepted by it sum of con- state of New the the ' n represented provisions: amount further total tained these the defendant travelers’ checks which principal to he claims “Whereas, Later, of those lost. claimed to have following issued checks travelers’ owner of the by presented Ex- American checks were obligee. (Here numbers and follows press Company by persons and checks.) amounts of the different paid by And demand were that principal alleges “Whereas, that Fidelity therefor lost or de- said have been travelers’ checks indemnity bond, York, surety found; re- stroyed on the and and cannot be obligee willing pay “Whereas, express company for the amount imbursed the represented principal said paid. This suit requiring the surrender checks without first amount. indemnified for cancellation if the said checks The checks issued may expenses loss, costs, all signa- genuine the defendant contained the 'doing. of its so occasioned it reason be signa- top, tures of the defendant at the “Now, therefore, condition of the fore- being ture therein of is- at time written going obligation is such if the above suance. following signatures Just above the were 'parties fully indemnify, protect, bounden countersigned obligee be- and save from words: “When any costs, loss, expenses, all signature.” The name of low with this payees may paid having it reason of its occasioned the check was left blank represented of,” “Pay at order the words bottom ' the said travelers’ checks without first re- “countersigned” printed word quiring the said surrender checks just on which a blank was above line cancellation, "obligation then this shall be signature The defendant. left shall remain in full otherwise it fect.” force ef- evidence, all checks were introduced brought originals have been ' written, part name As record. of the by plain- The bond was executed just appears below line defendant company upon tiff plication the defendant’s written “countersigned,” and after word therefor. The embodied of,” body “pay to the order words the a statement that he had lost pen check, in with are filled the blanks disposed had not sun- names divers and ink with the and dry persons stipulated further that: in- likewise whose names are “In consideration of the execution checks. Those backs of the dorsed on the Casualty Company York, of New aggregate the sum $930. Company, hereinafter called the of the bond only offered Harrison to the The defense hereby applied for, Sidney ,M. herein Har- signatures purported that the suit was Worth, Texas, rison of state of herein- Fort “coun- the checks under the word applicant, bottom of tersigned”. agrees after called the as follows: (1) de- were all and the To on the execution of the bond said premium (2) testimony thereon. To $20.40 introduced fendant against any demnify ¿ges, Company Company losses, dam- exception plea, that he admitted charges, expenses costs, checks for stand that one the witness any way incur, sustain, or be- forgery. Defendant, anot $10 sum of consequence for in of the said come liable party Harrison, made the any thereof, or renewal or new recovery sought a over the suit and thereof, in continuation or as a substi- evidence of the issued adjudged might any sum that it for proper tute, therefor, and upon allegations was based Company losses, him. payment by expenses payments, damages, costs, charges, made com- shall be conclusive evidence pany employer applicant’s to burse said for all losses sustained fact the extent agreement.” infidelity Company under this Eickhoff receiving agent grain ele- of its proper conclusive Plaintiff furnished provided the the vators. The bond further losses it of evidence of voucher, other evidence *3 express company. by the sustained casualty the elevator defendant [1] Plaintiff’s .the fact should be conclusive evidence of the extent of it had been the amount reimbursement of liability to the elevator Eiekhoff’s Express' compelled Com American the provi- The court held the upon predicated pany the common- was not against public policy, sion was because surety by recovery allowing a a law rules using following language: the by principal the for amount his present attempt pro- “In ease is to debt, surety upon principal’s based but was alleged that, vide after cause of action has agreement in subdivision his contained accrued; plaintiff shall the sole above, 2, copied his written of judge its and ex- conclusive of both existence indemnity sign as said the surety. agreement clearly against tent. an is Such by is That public .policy.” unambiguous plain, specific, and entitled favor, given The other are sub- decisions cited above if its a stantially written, to the same effect. legal believe should as we effect as above, ap Opposed to the decisions noted be done. pellant following has cited the decisions Appellee that since insists stipulation by in an presented which it agreement, a that the American any proper upon forger- evi- the effect that payment surety company loss, deuce of the a signature, sustained of ies plaintiff his reimbursing surety company would principal conclusive evidence indemnity payments, on an bond of for such payee comprehended and extent his legally of of as is such loss not the nity, contrary public policy, is but is language indem- used his contract binding agreement. separate valid above, Co. Guarantee or referred to Pitts, 837, 758, espe- Appellee of N. A. v. Miss. plaintiff. 78 30 So. contract with the cially Supreme Mississippi; policy public Court American contrary attacks Bonding Co. Baltimore Const. v. Alcatraz language contained therefore void Co., 483, 225, by 202 F. 123 C. C. A. the Cir separate com- with the Fidelity Appeals; cuit U. Court of S. pany, to wit: Guaranty Baker, 227, 136 Ark. S. Co. 206 payment proper evidence of “And 314, by Supreme Arkansas; W. Court of losses, damages, Company .any Surety 49, Maguire, Illinois Co. v. 157 Wis. expenses costs, charges, be conclu- or 768, by Supreme Wis.; N. W. fact 145 Court of sive and evidence extent applicant’s liability Surety Fulton, 645, to the App. Nat’l Co. v. 192 Div. agreement.” Company this 237, by Supreme 183 N. S.Y. Court York; Surety Casner, Nat’l Co. v. 253 chiefly upon appellee to The relied 1057, by Supreme Mis W. Court Fidelity & Cas that contention are ; Peay Surety Co., souri 265, Ark. v. Southern 141 Eickhoff, by ualty New York v. Co. of 722, Supreme Court Minnesota, 170, Supreme 63 Minn. Court of 65 Arkansas. 586, Rep. 351, R. Am. N. L. A. 56 St. 30 In the ease Guarantee Co. of North Deposit Maryland 464; Fidelity Co. of Pitts, above, Supreme America v. cited Nordmarken, by Supreme Court of North Mississippi Court of used the lan- 19, Dakota, N. D. N. W. 155 guage : Crays, by Casualty New York v. Co. of wrong nothing 450, unreasonable, Minnesota, is or Supreme “There or 76 Minn. Court against public ties sui stipulation. policy, in Par- A. N. Guarantee Co. N. 79 Charles, may juris lawfully stipu- make such Supreme Court South Car lations, bound them. Under 387, 282, olina, 1916B, 687; E. Ann. Cas. 92 S. C. company was in ad- ex- to contract authorized Co., v. Enoree Power Jones guaranteeing, vance, as a condition 452, E. 92 S. C. 75 S. the same paying any as to demand made ercise discretion 1914B, 293. Ann. Cas. guarantee, the holder of and was bound (Fidelity Casualty only and, claim, settling The case first cited Co. to act without fraud party paying, Eickhoff) deci- is entitled to v. sions, earliest of those in the thus hold reimbursement; guaranteed vouch- opinions and it cited proves claim, not shown er if to have Fidelity & In case the other decisions. Casualty delay, expense, The with fraud. infected Company Eickhoff to recover sued guarantee against trouble, and risk of loss to com- Red Ele- River pany warranted safeguard an un- is a sufficient ' Company, employer, under Eickhoff’s
vator
stipu-
payment; and,
without such a
bond executed
Eickhoff with
complained
here, guarantee
lation
panies
com-
casualty company
surety, stipulating
anything
safely do business
could not
cheaply
do,
reim-
the evident
would
like as
be
with that
defendant
provided
instruments;
often
were
forged signatures
defendant
ing
sons,
out
a matter of
bursing
business
persons
other
binding himself to
the backs of the checks indicate that
press company
made
tion
of the
written
the
were
to collect
sumption must be
of
either in
defendant;
countersigned
tion if it
fying
the action of the
offered
payable upon
that
express
is clear that
want of
stantially
pellee
ed
posed
company paid
same
deed, contemporaneously with the execution plaintiff
signs,
able
of fraud. We
“hold
can
advantage
public.”
faith,
similarity
Tex.)
[2]
[3,
forgeries
paid by
presented by persons claiming
jury
part
same
the further
requiring
pf the
Express Company,
4] Since the checks
swindled
including
reasoning,
purchased by
than
from and
and'
did not
the'
tending
company
indemnity company
the time in
men,
good
for
countersigned
had
other decisions
to the same effect
to be
of tie
we observe between the
without
express company
defendant,
and which
thereby
common
case.
sound,
trial court
must be in
defendant executed
decisions,
presentation
it
experts
him
adopt
the checks
them was
properly
faith
through
tender
been
even bankers who are
in
banks, upon
latter,
indemnity company
to
notwithstanding
all of
against any
and with the name
was
genuine,
for such
signature
that
indulged
with the
paying
even
with the
sustain
indemnify
In his
any
and it is
on the same checks with
or with
lose
divers and
made.
might
challenged
knowledge
effect that he had
within
those
produce
and
they
if his
its
findings
countersigned by
thereon
or in
fraudulent
because
conclusion
what it
and of the
& CASUALTY
_the
last
in
untrue,
pleadings,
payments
handwriting,
passing
successors or as-
any
no
indorsements
their terms were
that
might
admitted
Hence,
*4
part
and all
any
however,
the belief
the said Ameri-
reimbursed
good
statement
directly applic
representation
faith and
notwithstand
evidence
them to
them.
surrender,
some
at the
present
that shrewd
sundry per-
had
controversy
we believe
a
contempla
court.
thereafter
appellant,
faith
and that
upon the
fraud
collusion
separate
in reim
are sub
striking
liability,
in
already
making
conten
general
alleged
person
else.
forged
places
reach
or on
quali
good
they
sup
pre
was
free
not
are
v. HARRISON
(274
OF NEW YOKE CO. In-
ex
ap-
it
S.W.)
not be sufficient evidence of
ny,
to
the
faith
in
language
because
That
harmless for the
them.
member while in
Appellee
ically
that a
to
ance of member from his last-known
of defendant’s
and
ficiary
American
so.ught
the reasonable value of such services.
ever,
of residence for
asserting
this
tion
with
Court of
K.
suit, and
dence for the
would also
over
O.
being
American
the amount of said
American
or elsewhere for
be
his death
be
Rev. St.
loss, costs, damages,
assigns by
any
the
payment,
any right,
hereafter be suffered
assigns,
such
der
“Any person absenting himself
Those
In addition to
[5]
prove
paying
W.,
made that
nonpresentation
asserting any right, title,
cause,
already noted,
thus
one
the statute
member,
statute
nor
P., Wilson,
in each of which cases it was
effect
stipulation
'And
until
claim
express company
to recover
a
certificate
contrary
for or
line with the decisions
plaintiff offered evidence sufficient
which was claimed
art.
would
decisions
presenting
Express Company,
or the assertion
Express Company,
title
appears
Appeals
Robinson,
did
Express
or under the said
bar
for
a consideration for
in
even
proof
policy
that
it
(s)
provides
guidance
defense that
he
5707.
part
the amount so
that
to hold the
cited
or
come
his suit to recover on his
checks
the absence of fraud
preclude
seven
was alive
bond to the
or demands
interest in said
any length
if
in a life insurance
the absence or
dead,
cheque
no
thereof at the time
at
have no
$250
company
reason that
Company,
to wit: Soc.
the same for
they
204 W.
a
or
membership
or
the sums
death be
not submitted
years
that:
of courts.
Dallas; Sup. Lodge,
question,
statute of‘the state.
standing,
prosecution of
request
fixed
expenses
S.
contract
(s),
for sums
clearly
were
he was not
within
any
express
of the checks to
shall accrue
successively
its successors
defendant from
prayed
cheque(s).”
attorney’s
express compa
a rule of
the death
plaintiff also
cause
made
successors
894, by
cheque(s) or
215, by
unless
aforesaid,
forged,
its sutomis-
any
beyond
time shall
interest
disappear-
Camp,
person
with the
execution
company
the said
the said
stipula-
wherein
a
conflict
of such
policy,
specif-
event.
time.”
terms
liable
How
place
bene-
proof
that
fees
him
this
bad
evi-
un-
sea
in
or
or
(Tex^
bond-,
circumstances, plaintiff
with the execution
in
sion. Under
had,
controversy, appellee
separate-
any
right,
if
waived
G.,
express compa-
attorney’s
H. & S. written
fees.
sum as
ny
specifically
(Tex.
App.)
Ry.
the terms of
Com.
A.
v. Price
Co.
Transportation
City
Co.
to hold the
harm-
Tex.
App.) 222
less for the
one
ing
S. W.
Winters
Com.
Tracy (Tex.
App.)
assert-
Civ.
Co. v.
Pub. Service
right, title,
or interest
them.
@=>For same KEY-NUMBER all other oases see Indexes