State v. Bergfeld

REYBURN, J. (after stating the facts). — The points sought to be established on behalf of appellant to warrant reversal are three-fold, embracing first, the insistence that it devolved on plaintiff to demonstrate by proper proof that the default of the curator occurred during the period of the bond executed by defendant and the testimony established that the loss ensued from an investment made prior to the life of the bond in which [636] / defendant had united as surety, and during the term a bond with other surety was in force and after the release of defendant thereby from continuing obligation. The defendant’s answer pleaded with precision that at the execution of the new bond February 12, 1900, with the American Bonding & Trust Company as surety, and immediately prior to his discharge as such surety and his succession by such corporation as the curator’s surety there was on hand in possession of Bobb, as appeared from his settlements, cash and the property enumerated, with other property, and that all defalcation on the part of the curator and the squandering of the estate of the minor took place long after the discharge of defendant, and while such new bond was operative. The conclusion, therefore, is not only logical but unavoidable on such state of the pleadings, that the assets were not converted or dissipated prior to defendant’s suretyship but when his liability attached they were safely in the custody of the curator, and the presumption further follows and must be indulged that his liability as surety comprehended and embraced the amount of such estate of the ward, being the assets specified in the petition. The defendant was concluded by the theory of the pleadings adopted on his part and was precluded from injecting a foreign issue or departing in the proofs tendered from his own answer by testimony that the assets- were lost by an improper investment prior to his suretyship. The answer contained no such defense, but on the other hand exhibited a state of facts repugnant to and contradictory of such hypothesis. Glass v. Galvin, 80 Mo. 297; De Donato v. Morrison, 160 Mo. 581, 61 S. W. 641. The answer of defendant also showed that the judgment had against the curator’s estate September 14,1903, for the amount of $965.51 and $24.15 costs exceeded at time of trial herein, May 19,1904, the amount of recovery limited by the peremptory instruction. For such sum defendant was liable in any event to plaintiff, as the sum to the [637] extent of which he was indemnified by the principal, and which enured to the benefit of plaintiff as security for the curator’s indebtedness to her, as well as for the protection of defendant as his surety. National Bank v. Davis, 87 Mo. App. 242. Nor is appellant’s contention tenable that a new ground of action was pleaded in plaintiff’s reply. The allegations of the reply responded to the plea that defendant was exonerated from liability by acceptance of a new bond in that he was estopped from denial of such liability by the collection of the assets received by him as indemnity in the sum of $1,000. Proof of such allegations controverted the defense pleaded and was not essential to establish nor inconsistent with the facts charged in the petition. The defendant by him own solemn admissions was responsible for $1,000, the amount which the court properly directed the jury to find in favor of plaintiff. The judgment is affirmed. All concur.