Sun Life Insurance v. United States Fidelity & Guaranty Co.

DOUGLAS, J., dissenting. The defendant, in January, 1899, by a written agreement, bound itself to make good and reimburse to the plaintiff, to the extent of $300, all and any pecuniary loss that might be sustained by the plaintiff of moneys or other personal property belonging to the *Page 92 plaintiff in the possession of J. R. Caudle, directly occasioned by larceny or embezzlement on the part of Caudle, in connection with the duties of the position which he held under the plaintiff. Caudle had been, in December, 1898, appointed by the plaintiff an "assistant superintendent of its Thrift Department, in connection with its Wilmington agency." His duties in that capacity were to procure agents to work under him; to instruct the agents in the details of the thrift business, and to work with them in securing applications for assurance in the plaintiff company. He was also to inspect, canvass and collect, as directed by the company. A statement in writing before the execution of the indemnity bond by the defendant had been made by the plaintiff to the defendant, in which was set forth the duties of Caudle, and that statement was the basis on which the bond was executed. On the following April the plaintiff made another contract with Caudle, and afterwards Caudle became short in his accounts with the plaintiff. This action was brought to recover of the defendant the amount of the deficiency. The defendant in its answer denies its liability, and especially does so on the ground that the contract made by the plaintiff with Caudle in April was, in its express terms, different from the contract of December, upon the basis of which the indemnity bond (131) was executed, and was in express terms a cancellation and revocation of the December contract. His Honor instructed the jury that they need pay no attention to the alleged discrepancy between the two contracts between the plaintiff and Caudle, nor to the alleged increased responsibilities and duties of Caudle under the April contract, and that as a matter of law the contract of April did not affect the defendant's liability. The correctness of that charge depends upon whether there was a substantial increase of Caudle's responsibilities and duties under the April contract, or whether the contract of April expressly revoked and canceled the contract of December. Upon an examination of the April contract it is seen that the name of the position which Caudle held under the December contract was changed. Under the former he was called "assistant superintendent of its Thrift Department, in connection with its Wilmington agency," while under the latter he was designated "district manager," "agent." and his field of operations embraced six counties, including New Hanover. In the April contract there is a provision in these words: "This appointment will take effect on 1 May, 1899, and will on that day supersede and annul all agreements previously made between the company and the said agent," and a further provision that the agent, Caudle, should "keep deposited with the company a bond in its favor executed by *Page 93 himself and two sureties satisfactory to the company, for such sum as it may consider necessary for the faithful performance of this agreement and all duties pertaining to said agency." The contract of December did not require a bond from Caudle with two sureties, and the one executed under it had only one, the defendant. We think that the contract of April increased the business and the territory in which Caudle operated, and his responsibilities and duties as well, and that its legal effect was to absolve the defendant (132) from liability on its bond. Besides, the contract of April expressly superseded and annulled all agreements previously made between the plaintiff and Caudle. And there is another error which will entitle the defendant to a new trial. His Honor instructed the jury that, "The correspondence between the plaintiff and defendant shows that defendant waived all matters except the question of embezzlement," that is, that the defendant waived any difference between its liability under the two contracts. There was no evidence tending to show that the defendant ever had notice of the execution of the April contract until the complaint was filed, six months afterwards. On the trial it is true that Johnson, the plaintiff's agent, said he gave notice in Raleigh to Moye, the defendant's agent, of the execution of the April contract, but Moye denied it emphatically. His Honor told the jury that they need not consider that matter at all, that the April contract did not affect the defendant's liability one way or the other. So, there being no evidence that the defendant had notice of the April contract, the correspondence between the plaintiff and the defendant must have been in reference to the December contract, for upon that the indemnity bond was executed. New trial.