15 Colo. App. 23 | Colo. Ct. App. | 1900
This is a suit on a bond executed by William H. Wells and the appellees as his sureties, to the appellant, the Rockford Insurance Company. Mr. Wells had been appointed by the company as its agent for the city of Denver, and the conditions of the bond were that he would make true records and regular reports of all business done by him as agent; keep true and correct accounts of moneys and other securities received by him as agent, and pay over the same to the company monthly, or oftener if demanded; and that at the end of his agency he would pay at once all moneys due. The date of the bond was March 15, 1892. The agency commenced on the same day, and was terminated on the 13th day of April, 1893. On the 15th day of June, 1893, Mr. Wells died. The breach alleged was the failure of Mr. Wells to pay over the moneys received by him for the company during the months of February and March, 1893.
The plaintiff introduced reports by Mr. Wells for February and March, 1893, certain statements accompanying the reports, and entries from its agent’s account book. This evidence showed no remittances for those months. The defendants introduced copies of the plaintiff’s books of account with Mr. Wells, covering a period commencing in September, 1891, and ending in January, 1893. They also proved a payment to the company by a Mr. Frick, in behalf of Mr. Wells who was sick, made on June 6, 1893, of $129.24 in full of the balance due for April, 1893. These books showed that Mr. Wells made remittances to the company every month during the period of his agency, including the months of February and March, 1893. The accounts for those months, as they appear on the books of the company, exhibited no credits; nevertheless, the books, elsewhere, showed payments of money during those months. It appears from the books that for a considerable time prior to March 15, 1892, Mr. Wells sustained business relations, of some kind, to the company. Whether he was-then its sole agent, as the plaintiff claims,
The only witness for the plaintiff was its president, John Lake. He testified to an indebtedness of Mr. Wells to the company for February and March, 1893, of $927.62, and, in support of his statements, exhibited the reports and accounts for those months. He said nothing about the other accounts in which the payments made during the same months were shown. How Mr. Wells should have made a large remittance
Rut we may concede that Mr. Wells had incurred a prior liability, and there is still no case against these defendants. They were sureties upon a bond. Their undertaking is to be interpreted strictly, and their liability is' not to be extended beyond the terms of their contract. U. S. v. Boyd, 15 Pet. 187; Savings Bank v. Creigler, 49 Mich. 157 ; Bank v. Brennan, 7 Colo. App. 427. They bound themselves for the payment by Mr. Wells to the company of all moneys which might be received by him as its agent. The condition of the bond was prospective, and subjected them to liability only in case of default occurring after the execution of the instrument. If Mr. Wells paid over to the company all moneys received by him after the date of the bond, he satisfied its
It was admitted at the trial that Mr. Wells was the agent for a number of companies, including this; that he deposited all money received by him from all sources to one account, and used it, as he needed it, to pay whatever he was obliged to pay, whether an obligation to an insurance company or a private debt; that the money remitted to the plaintiff was not the money received for premiums on its policies, and that portions of it were borrowed. An argument is built upon this admission which we do not quite understand. Mr. Wells was not required to send to the company the identical money received from premiums. For the money so received, he owed the company, and if he discharged the debt, the source from which the payment came is unimportant. He may have drawn the money from the consolidated fund into which his receipts from all sources went, or he may have taken it directly out of his pocket, or he may have borrowed it, but if it was sent to the company in the course of the current business, it was the right of the sureties that it should be credited upon that business.
We do not wish to be understood as saying that a state of facts might not exist, which, notwithstanding the remittances proven, would create a liability against the sureties. Mr. Wells might have converted to his own use the receipts from his second agency, and the payment of his old debt might have been an independent matter, wholly unconnected with the business he was then transacting. Such a situation would present a question which the record before us does not raise.
Affirmed.