Fidelity & Casualty Co. v. Lawler

BUCK, J. On or about August 6,1891, the Cargill Elevator Company, intending to employ one W. L. Lawler as its agent in receiving grain at its elevator and warehouse at Kindred, North Dakota, for one year, beginning on August 5, 1891, the Fidelity & Casualty Company of New York, for a consideration paid to it, gave a bond of indemnity to the Cargill Elevator Company against all acts involving fraud or dishonesty on the part of said Lawler. To indemnify the Fidélity & Casualty Company for its liability incurred by giving such bond, the defendant W. L. Lawler as principal, and the appellant and another person as sureties, on August 19, 1891, executed a counter bond to the Fidelity & Casualty Company, which is set forth in the complaint in full, and which indemnifies the Casualty Company for its liability incurred by giving such bond. There is no limit of time specified, in express terms, as to when the liability of the defendants herein should cease. The premium was paid by the Cargill Elevator Company to the Fidelity & Casualty Company for one year from August 6, 1891. It is further alleged in the complaint that at the end of that year, the defendant W. L. Lawler having requested the Fidelity & Casualty Company to renew its bond of indemnity for Lawler, in his capacity as such receiving agent for the elevator company at Clifford, North Dakota, for a year, commencing August 6, 1892, the Fidelity & Casualty Company notified the defendant sureties of said request, and they [148] signified their intention, by letter to this plaintiff, to continue on the counter bond to the Fidelity & Casualty Company. The complaint also contains similar allegations as to the subsequent year.- We think the counter bond sued upon is a continuing one, and bound the defendants to indemnify plaintiff against loss by reason of its guaranty to the elevator company of Lawler’s fidelity, not merely for the original time of one year, but also for any renewal or extension thereof; and therefore, if Lawler had continued to act in his capacity as receiving agent Of the elevator company at Kindred, the defendants would be liable on the same bond for Lawler’s default. Davis v. Wells, 104 U. S. 159. We also think that Lawler’s appointment as receiving agent at Kindred was a special one, as to place, but the defendants were notified of the change of place of Lawler’s service, and consented thereto by their letter expressing their willingness to remain on the bond. The defendants’ promise to indemnify the plaintiff against loss by becoming responsible for Lawler’s faithful performance of his duty to the elevator company is not within the statute of frauds. Goetz v. Foos, 14 Minn. 196 (265); Browne, St. Frauds, §§ 161, 162. As the defendants consented to continue on the counter bond after Lawler’s transfer from Kindred to Clifford, it constituted a waiver of any right they might otherwise have had to claim that they were released by reason of the change in Lawler’s place of service. That the complaint alleges a default in the conditions of the bond is conclusively determined in the case of Fidelity & C. Co. v. Eickhoff, 63 Minn. 170, 65 N. W. 351. The order overruling the demurrer is therefore affirmed.