196 Mo. App. 291 | Mo. Ct. App. | 1917
Plaintiff insurance company sues upon a bond given to it by one of its agents for the faithful performance of his duties. The agent, Sam L. Casey, and principal in the bond, filed no answer in the case. The surety, William A. Nettleton, made defense. A jury was waived and the cause was tried by the court. . Judgment was réndered in plaintiff’s favor for $2500 the full amount of the,bond, and for $250 attorney’s fee, aggregating the sum of $2750. The surety has. appealed.
Casey was appointed agent April 1, 1904, and the bond was executed and delivered on that date.- It was in the regular form of a bond in the sum of $2500 with the collateral condition therein that:
“If the said Sam L. Casey, shall in all respects faithfully and well, perform his duties as such agent*293 and observe and fulfill the instructions and directions, general and special, which may from time to time be given to him by said Company and its authorized officers and agents, and duly and punctually, account for, pay over and properly apply all premium moneys due and payable upon and by the terms of policies issued by the said agent, whether at that time collected by the said agent or not, and all other sums of money, which may come to him as such agent, or ft>r and on account of said Company, and duly and properly account for and apply all goods, chattels, or other property, which may come into his possession, or under his control, as such agent, or' for said Company, and, upon the termination of his agency, from whatever cause, immediately account for, and pay over unto said Company all moneys in his hands as such agent, or that may then be due from him to said Company, and deliver up to said Company, or such person or persons as it may designate all supplies, blanks, accounts, memoranda, records of business done for or upon account of said Company, and other property, things and effects of said Company, then this obligation to be void and of no effect, but otherwise to remain in full force and effect.”
The instrument then closed with the following paragraph appearing just above the signatures:
“It is further covenanted and agreed by said above bounden parties, that, if suit be brought to enforce any of the obligations of this bond, the said Company shall, in case of recovery, be allowed a reasonable attorneys’ fee, and all costs, expenses and cash outlays arising, to be paid in addition to the amount otherwise recovered; and the said sureties waive notice of any default the said above bounden principal may at any time make, and hereby agree that failure to give such notice shall not, in any manner, affect their obligations under this bond.”
No question is made over the authority of the plaintiff to take the bond nor of its due execution. It is conceded that on August 9, 1913, the agent Casey
The defense of said surety was made upon what may be divided into three grounds: 1. That on December 20, 1912, the plaintiff terminated the agency and suspended the authority of said agent to issue policies until he should pay all premiums due the Company and collected by him up to November 1. 1912; that afterwards, upon the payment of all sums due from Mm up to November 1, the company reinstated him as gent; that the surety knew nothing of this; and the suspension' and subsequent reinstatement was, as to such surety, a cancellation of the old contract of agency and the making of a new contract, for the performance of which he was not liable. 2. That said agent, prior to December 20, 1912, had misappropriated and converted to his own use the premiums he had collected and then owed, and that plaintiff, with knowledge of said agent’s dishonest conduct, neither notified the surety nor discharged the agent, but continued to allow him to act in that capacity, whereby the surety was released and discharged from liability for all losses arising from the subsequent defaults of such agent. 3. That during the continuance of said agency the plaintiff, without-notice to the surety, changed the postage allowable to the agent from fifteen cents per policy to five cents, and required the agent to remit premiums in forty-five days after the issuance of the policy instead of seventy-five days, and that by reason of such changes in the contract of agency without notice to the surety, the latter was released.
With reference to the first ground above mentioned, the evidence discloses no discharge and reinstatement of said agent whereby a new contract of
As to the second ground upon which release is claimed, namely, that the company did not notify the surety of the agent’s falling behind in remitting his premiums, the general rule is well settled, as to bonds which are silent on the subject of notice, that failure to notify the surety of any dishonest conduct on the part of the principal coming to the knowledge of the obligee, will release the surety as to all losses suffered subsequent to the obtaining of such knowledge. [Phillips v. Foxall, 7 L. R. Q. B. 666; Charlotte etc. R. Co. v. Gow, 59 Ga. 685; Rapp v. Phœnix Ins. Co., 113 Ill. 390; Connecticut Mut. Life Ins. Co. v. Scott, 81 Ky. 540; Farmers Bank of Deepwater v. Globe Surety Co., 192 Mo. App. 243.] And it is also the rule that knowledge of mere negligent inattention to business, failure to attend to same promptly, a want of diligence or something of that kind, not amounting to a lack of integrity, on the part of the bonded agent, will not require notice thereof to be given the surety by the obligee, unless the surety by inquiry creates such obligation. [Home Ins. Co. v. Holway, 8 N. W. 457; Elliott v. Qualls, 149 Mo. App. 482; Wilkerson v. Crescent Insurance Co., 40 S. W. 465; Watertown Fire Ins. Co. v. Simmons, 131 Mass. 85; Lake v. Thomas, 36 Atl. 437; Harris v. Newell, 42 Wis. 586.] So far as concerns the evidence offered by plaintiff and the correspondence between the company and th'e agent with reference to the balances due from the latter, there does not appear to be anything
As stated, the fall amount of the bond was $2500. The damages exceed that amount, and the .court rendered judgment for the face of the bond. But the court also rendered judgment for $250 attorney fee in addition to the full amount of the bond. We think this was .erroneous. It is true the bond' contains a stipulation for the payment of an attorney’s fee, expenses and cash outlay, if suit be brought on the bond. But this stipulation has reference to the damages that may be recoverable upon a violation of the bond and is not a part of the penalty of the bond. In other words, the agreement that an attorney’s fee may be recovered means that it may be recovered as a part of the damages within the amount for which the surety has agreed to he hound. The suit is on the bond and the surety has agreed to be bound to the extent of - $2500 if the obligee’s damages shall be that much, but that is the extent to which he has agreed to be bound. He is not required to pay more than the damages actually sustained although they exceed the amount of tlie bond. Section 1240, Eevised Statutes 1909, provides that judgment shall be rendered for the penalty of the bond and plaintiff shall have execution for the damages assessed. Of course, if the damages assessed exceed the penalty of the bond the plaintiff cannot recover such excess from the surety since there is no judgment for anything except the penalty of the bond and no authority for any execution except for the damages ivithin the penalty. The general rule has always been that plaintiff cannot recover more than the penalty of the bond.. [Farrar v. Christy’s Admr., 24 Mo. 474; State ex rel. v. Woodward, 8 Mo. 353; State ex rel. v. Sandusky, 46 Mo. 381; Board of Education v. National Surety Co., 183 Mo. 166, 184; Sholes v. Freeman, 81 Mo. 540.] An attorney’s fee is a part of the loss sustained by an obligee when compelled to sue on a bond. In other words, it partakes of the nature of the damages sustained, and the agreement to pay same