American Surety Co. v. Empson

Mr. Justice Goddard delivered the opinion of the court: Appellant relies upon that clause in its printed form which provides for the payment of an annual premium of $100 until proper release of the company from the bond should be furnished. There might be some force in this contention if it were not for the fact that a written clause was inserted to the effect that such payments were conditioned upon the continuance of the bond “from year to year at the request of said party of the first part.” When writ [448] ten and'printed provisions in a contract cannot be reconciled, the written provisions prevail. “The written parts are ‘the immediate language and terms selected by the parties themselves for the expression of their meaning,’ and accordingly must control in case of conflict. ’ ’• — 2 Page on Contracts, § 1119; Beach on the Modern Law of Contracts, § 728. The court below found that the bond sued on was intended to, and did, obligate the company to indemnify Polk against only such liability as he might incur by the use of the Empson pea-sheller during the year 1897; that the $100 paid was the full premium for this particular bond; that no further premiums were payable because Empson had not requested that it be continued or renewed. That this was the construction put upon the bond by the company itself is evidenced by the fact that it surrendered the stock of The Empson Packing Company that it held as collateral, and did not make any demand or claim for premiums for three years, which, according to its present contention, were due and payable in advance in each year. We think the court below correctly held that the liability of the surety company was limited to such matters as occurred during the year 1897, and that grew out of the usé of the Empson machine by Polk in the performance of the contract between him and Empson for that year only; that the $100 paid was the full premium for this bond, and that no further premiums were payable. Its judgment is, therefore, affirmed. Affirmed. Chiee Justice Steele and Mr. Justice Bailey concur.