52 Ind. App. 480 | Ind. Ct. App. | 1913
Action by appellant against appellee on a surety bond executed by the latter, for damages sustained by appellant through dishonesty and infidelity of its employe indemnified thereby. The complaint was in one paragraph. Appellee answered in two paragraphs; the first a general denial, and the second setting up an affirmative defense. A demurrer to the second paragraph of appellee’s answer was overruled, and appellant then filed a reply thereto in general denial. The cause was submitted to the court for trial, and a special finding of facts was made and conclusions of law stated thereon. Appellant excepted to the conclusions of law, and filed a motion requesting the court to restate same, which motion was overruled, and judgment rendered in favor of appellee.
The- errors assigned are : (1) the overruling of the demurrer to the second paragraph of appellee’s answer; (2) the court erred in its conclusions of law on the facts specially found; (3) the overruling of appellant’s motion requesting the court to restate its conclusions of law; (4) the court erred in rendering judgment for appellee.
In substance, the complaint alleges that appellant had in its employ George H. Besancon, an agent located in Los Angeles, California, who represented it as its sales manager in California, and who was charged with the duty of selling
Appellant insists that error was committed by the court in overruling the demurrer to the second paragraph of appellee’s answer, and on the determination of this question this action must be decided.
The averments of this paragraph are, in substance, as follows: Appellee admits the execution of the contract on November 15, 1906, and its extension until November 15, 1908, as shown by the complaint; that on October 24, 1906, at'the time the execution of the bond was under consideration, it. submitted to appellant certain questions in writing, the answers to which were to be tahen as conditions precedent, and as a basis of the bond applied for or any continuation thereof; that the answers returned by appellant were for the purpose of inducing appellee to execute the obligation in suit, and relying on the same and believing them to be true, appellee did execute the bond. These questions and answers were by the agreement of both parties made conditions precedent; that they are warranties, and entered into and became a part of the contract sued on. It is averred that appellant’s business is carried on in the city of Marion, Indiana, and that it had a salesman in Los Angeles, California, one George H. Besancon, who had charge of its property and effects in that city; that among certain condition specified in the bond was the following: • “No. 5. The business of the Employer shall continue to be conducted, and the duties of the Employe shall remain, in accordance
A consideration of the general' legal propositions presented, and an application of the principles to the questions in this case, will very much shorten this opinion.
Appellant argues (1) that the bond was valid and in force when issued; (2) that appellee is estopped from setting up the defense of forfeiture on account of such breaches, since it has not returned the premium received since the delivery of the bond.
In the case of Medley v. German Alliance Ins. Co. (1904), 55 W. Va. 342, 367, 47 S. E. 101, 2 Ann. Cas. 99, the court said: “Nor is there any evidence of waiver; on the part of the company, unless its failure, or offer, to return the premium could so operate, but it cannot. As to this condition, violated after the policy became effective and operative, the return of the premium is not a prerequisite to an assertion of forfeiture. It does not render the policy void at iniiio. It is not cause for rescission, in the execution of which the parties must be put in slalu quo, nor is it a case of the ratification of an unauthorized contract, made by an agent, by retention of benefits thereunder. If it were not a breach of a promissory warranty, but a violation of a stipulation as to a fact relating to title or condition of the property, or to some other matter affecting the inception of the contract, retention of the premium might, on sound principle, amount to a waiver of the breach, for the ground of defense there would be the want of a valid contract to start with, and not the cessation of a contract, in the manner therein appointed by the parties for putting an end to it, after it has gone into effect.”
In Georgia Some Ins. Co. v. Rosenfield (1899), 95 Fed. 358, 37 C. C. A. 96, the court held that if the risk attached and the policy became void, subsequently, through the conduct of the insured, no part of the premium can be re
We have carefully examined the eases cited by appellant on this point, and find they are easily distinguishable in their facts from the case at bar, hence the principle contended for has no application in this case.
There is no evidence to show that appellee, prior to the date requesting the prosecution of Besancon, had any knowledge that appellant had been guilty of the breaches herein charged, and the special findings of the court do not show that appellee had any knowledge on this question. It is therefore the opinion of this court that there was no waiver of appellee’s rights shown by the evidence in this case, and
The demurrer to the second paragraph of appellee’s answer was properly overruled. The court did not err in its conclusions of law.
Judgment affirmed.
Note.-—Reported in 100 N. E. 882. See, also, under (1) 19 Cyc. 521, 523. As to whether employer’s lack of diligence operates to release a fidelity-bond surety, see 100 Am. St. 787.