Bank of Ball Ground v. National Surety Co.

Wade, C. J. 1. Under the express terms of the fidelity bond forming the basis of this action, liability arises provided the employer shall have given certain specified notice to the surety of “any act of personal dishonesty” of the employee within “ten (10) days after becoming aware -éf such act, or facts indicating such act, or any loss, and shall have, within ninety (90) days after the discovery of any such loss, filed with the surety an itemized statement of such loss, and produced for all investigations all books, vouchers, and evidence, in the employer’s possession,” etc. (a) It is not sufficiently alleged in the original petition or in any of the amendments thereto that these conditions of the policy were complied ■with by the plaintiff. Nor does the petition allege any facts sufficient to constitute a legal waiver by the surety company (within time) of the aforesaid conditions, upon the performance of which only could liability arise under the terms of the contract. t 2. The trial judge d'id not err in sustaining a general demurrer to the plaintiff’s petition. Judgment affirmed. Jenhins and Luhe, JJ., concur.