Royal Insurance Co. v. Davies

40 Iowa 469 | Iowa | 1875

Miller, Ch. J.

The question presented in the record is whether the death of Davies, the surety in the bond, operated in law as a discharge of his estate from liability for the default of the principal, happening after the death of the surety. In other words, whether the death of the'surety operated to terminate the obligation assumed by him when he executed the bond on his part. It is not claimed on the part of the defendant that the liability of the surety, or his obligation as such, was terminated by reason of any act, or omission of the plaintiff, but it is claimed that the obligation of the surety ceased and the bond became defunct, as to every act done after the death of the surety, by reason of such death alone. By the terms of the bond the surety, Davies, bound himself, his “ heirs executors and administrators,” as surety for his principal, Kidder. This language shows no intention to limit the liability to the lifetime of the surety; on the coi-ir-trary it imports that the liability shall continue after his death, and bind his heirs and personal representatives. This intention is further manifested by the subsequent language o.f the 'bond, in defining more particularly the obligation assumed by the obligors therein. It is, that, “ if the said W._ E. Kidd-ér shall promptly pay to the said company the amounts received from time to time, and shall well and truly perform all, and singular the duties as agent of said company, as directed, according to the provisions of the charter, by-laws, rules and regulations of said company now existing, or which may be adopted by said company,-ybr and during the time he officiated as said agent, * .* * then this obligation shall be null and void, otherwise remain in full force and virtue.” This language clearly shows that the obligation of the sureties to the bond w'as to continue for and during the time Kidder, the principal, should officiate as agent of the company. Of course the death of Kidder would terminate the obligation of the sureties, for thereby the agency of Kidder would terminate. The terms of the bond continue the liability of the sureties as long as Kidder should act as agent of the company and this liability likewise by the terms of the bond, extends to the heirs and legal representatives of the sureties. They are bound by as clear and unmistakeable language as that which binds the sureties personally. Instead of there being any intent manifested to limit the obligation of the sureties to the terms of their respective lives, it is clearly shown that it was intended the obligation should extend to, and bind the heirs and personal representatives of the sureties, and that the binding force of the bond, and the sureties’ liability should continue as long as Kidder should act as the agent of the company.

No case exactly in point has been cited by appellant, and no authority whatever is cited by appellee. We are clear, however, that upon the general principles regulating contracts, and the terms of the bond in this case the death of the surety, Davies, did not terminate the binding force of the bond upon his heirs and legal representatives for the failure of Kidder, while he was the agent of the plaintiff, to pay over money coming into his hands as such agent. The case of Gordon v. Calvert, 4 Russ, 581, cited by appellant supports the view we have here taken.

The court erred in overruling the plaintiff’s demurrer to the answer.

Reversed.