State Ex Rel. Beaman v. National Surety Corp.

Clarkson, J. For the determination of this controversy, we think that the only question involved on this appeal is whether Fannie E. Yann is jointly liable with the National Surety Corporation and contribution arises in this case between said corporation and Fannie E. Yann. We think not, under the facts and circumstances of this case. The National Surety Corporation cites the cases of Jones v. Hays, 38 N. C., 502; Comrs. of Brunswick v. Inman, 203 N. C., 542; and Thornton v. Barbour, 204 N. C., 583. We think those cases have no application to the facts in the present action. In Roebuck v. Carson, 196 N. C., 612 (614), citing authorities, it is said: “Parol evidence is admissible to show that the contract was delivered upon condition precedent, or that the obligation was not to be assumed at all except upon certain contingencies.” Insurance Co. v. Morehead, 209 N. C., 114. For a decision of this controversy we do not base our opinion bn these authorities, as the bond was an official one. On the facts in this case, the plaintiffs are not contending that Fannie E. Yann is liable on the purported bond signed by her, but this is a controversy between the National Surety Corporation and Fannie E. Yann. The National Surety Corporation claiming from Fannie E. Yann contribution — one-half of what it has to pay for the default of the guardian. The facts are to the effect that Fannie E. Yann was the local agent of the National Surety Company, and signed the guardian bond for $5,000, conditionally, on 22 January, 1931. On 28 January, 1931, the National Surety Company filed a $5,000 bond as surety for the guardian, with the knowledge that “Fannie E. Yann is hereby released from said bond — this 28 January, 1931.” It received the premium on the $5,000 bond and became liable for the amount on default of the guardian, and does not on this appeal deny its liability. The guardian did not receive any funds until 10 March, 1931 — long after the record discloses Fannie E. Yann was relieved from the bond, with the understanding when the corporate bond was filed. Thereafter, when the National Surety Company became insolvent and was taken over by the National Surety Corporation, and assumed the liability of the National Surety Company on the bond, all these facts were known to it: That Fannie E. Yann *130 bad signed tbe bond temporarily and on condition, and tbe release as to her on tbe bond and tbe substitution of tbe National Surety Company. It goes without saying- that no court of equity would allow a recovery by tbe surety corporation against Fannie E. Yann, under tbe facts here disclosed — it would be inequitable and unconscionable. Tbe National Surety Corporation, successor to tbe National Surety Company, alone received tbe premium for its liability and alone is answerable for tbe default of tbe guardian, in accordance with its contract. For tbe reasons given, tbe judgment of tbe court below is Affirmed.