Byrne v. Ætna Insurance

Mr. Justice Scott delivered the opinion of the Court: This was an action of debt, brought by the appellee against the appellant, as one of the several makers of a bond to the appellee to secure the faitliful performance of the duties of one E. B. Mason, agent of the appellee at the city of La Salle. The declaration contains several counts, in one of which the obligation is set out in Tim verba. ' The appellant filed the several pleas of nil debet, non estfaetiim, and nul tiel corporation, on which issues were joined, and also seven other pleas, to all of which a demurrer was sustained. A trial was had in the circuit court, which resulted in a verdict for the appellee for the debt named in the obligation, and the sum of $803.30 damages. The appellant brings the cause to this court, and suggests, on the assignment of errors, four grounds on which he seeks a reversal of the judgment: 1st. That there is a variance between the bond declared on and the one adduced in evidence. 2d. That the verdict is for too much. 3d. That no demand was made for the balance due, before the suit was instituted.' 4th. That the instructions given at the instance of the appellee were erroneous. It is objected, that it is averred in the declaration that the bond on which the action was brought was dated “ the 30th day of January, 1864,” and that the one adduced in evidence bears date “ the day of January, 1864,” and, therefore, that there was a variance between the declaration and the proof offered. This objection might have been available to some of the counts in the declaration, but it certainly was not tenable when the bond was offered under the second count. In that count, the bond upon which the action was brought was set out literally, and when the copy offered in evidence is inspected it is found to correspond exactly. The second objection to the admission of the bond as evidence is equally untenable. We are unable to perceive any difference in the name of the appellee as used in bringing the suit, and the name as used in the bond. The words “ of Hartford,” following the corporate name of the appellee in the bond, may be regarded as simply designating the principal place of business of the corporation. There was, therefore, no variance between the declaration and the bond offered in evidence. Ho demand was necessary before bringing the suit. The bond does not, in express terms, provide for a demand, to create the liability. The liability becomes fixed on a breach of the conditions. Ho reason is perceived for making a distinction between this and other writings obligatory. As a general rule, the bringing of the suit is a sufficient demand, and we can see nothing in this case to require the application of a different rule. "W e think the second and fourth suggestions of error are well •founded. The verdict includes the whole amount received and in the hands of Mason, less $6.45. The verdict also includes the sum of $62, the balance of an unearned premium, never received by Mason. . It is in proof that the agent oí the appellee expressly forbade the assured to pay any more money to Mason. If this verdict includes the $62, and it certainly does, it is erroneous to that extent. The undertaking of the appellant, as security for Mason, was only to the extent that he would faithfully account to the appellee for all that was properly due. The liability of the surety ought not to be enlarged on account of the laches of the agent. Only the amount of the premiums received, less the agent’s usual commissions, was properly due to the appellee. The surety on the bond may1 be presumed to have contracted in view of that fact. If the commissions are not allowed, the appellant’s liability is enlarged by some unfaithfulness of the principal, to that extent. This can not be done. The instructions were, therefore, erroneous, in not telling the jury that the appellant was only liable on the bond for the total amount of premiums received by Mason in his capacity of agent for the appellee, less the usual commissions to the agent. It was error in the court to refuse to award a new trial, and the judgment must be reversed and the cause remanded. Judgment reversed.