Van Arsdale-Osborne Brokerage Co. v. Riner

Opinion by MATHEWS, C. For convenience, the' parties hereto will be designated as in the trial court. This was an action upon an indemnity bond. On the 1st day of May, 1909, plaintiff, who was general agent of a fire insurance company for the State of Oklahoma, *531 appointed defendant R. L. Riner its local agent at Ard-more. A contract was entered into and signed by both parties wherein the defendant Riner was to act as such agent, and to solicit insurance contracts and collect the premiums therefor. It was agreed in said contract, among other things, that the defendant Riner was to receive as his commissions a certain per cent, on premiums accepted by the plaintiff company to be paid in cash on the first of each month, with the proviso that where notes were taken by said solicitor for insurance policies and remained unpaid six months after due,, the commission advanced by said company to said solicitor should be refunded to the company.- To insure the faithful performance of the conditions of the contract on the part of the solicitor, he entered into a bond to that effect, and the defendants. O’Brien and Ballew signed the same as sureties. Plaintiff alleged in its petition that the said Riner had defaulted and failed to account for and to return to plaintiff money due under the terms of said contract in the sum of $458.24. The defendant sureties answered hy what was in effect a general denial. At the conclusion of the testimony the court instructed the jury to return a verdict in favor of said sureties but against the principal for the amount sued for. From the action of the court' instructing a verdict in favor of defendant sureties, the plaintiff prosecutes this appeal. We have not been favored by a brief upon the part of defendants, and are not apprised upon what theory the court based Its action, and a careful investigation of the record fails to reveal to us that fact. The court found that the principal upon the bond, R. L. Riner, was indebted to plaintiff in the sum of *532 $458.24, and instructed the jury to return a verdict to that effect. The evidence in the case fails to disclose any reason why the sureties should be relieved from their obligation, and before the court is warranted in relieving them therefrom, it is incumbent upon them to plead and prove some legal condition whereby they may evade the terms of the contract. Having failed to do so in this case, and the court having found the principal of the bond liable, it follows that the sureties are also liable. It is recommended that the judgment be reversed and remanded, with instructions to enter judgment in favor of plaintiff and-against the defendants D. M. Ballew and J. C. O’Brien in the sum of $458.24, with 6 per cent, interest per annum from May 14, 1912. By the Court: It is so ordered.