Farragut Fire Insurance v. Shepley ( 1899 )

START, C.

This is an action upon an insurance agency bond executed by the defendant Shepley, as principal, and the defendant Brown, as surety, to the plaintiff, the condition of which was to the effect that Shepley should account for and pay over to the plaintiff monthly, or when demanded, all sums received by him for insurance policies issued by him as the agent of the plaintiff. The complaint alleged that Shepley, as such agent, issued policies for the plaintiff, and received as premiums thereon for it the sum of $1,039.83 over all of his commissions and rebates, and that he failed to account for and pay over to the plaintiff the sum of $344.84 thereof, although payment thereof was duly demanded. The answer admitted the agency of Shepley and the execution of the bond, and alleges that he “wrote gross premiums for said plaintiff, amounting to the sum of $1,453.07,” and set up a counterclaim for a contingent commission. It also denied the allegations of the complaint except as admitted. The cause was tried by the court without a jury. The findings of fact were to the effect that the allegations of the complaint were true, and judgment was entered for the plaintiff for the sum of $344.84 and interest, from which the defendants appealed.

The assignments of error raise the question whether the findings of fact are sustained by the evidence. The appellants claim that there was no evidence that Shepley ever received or collected any premiums whatever. The defendant Shepley was called as a witness for the plaintiff. He admitted that the premiums on the policies written by him for the plaintiff amounted to the gross sum of $1,453.67; that he signed the policies himself, which were in the form known as the “Minnesota Standard Fire Insurance Policy.” He made no claim that he had not received the premium, or that he had paid or accounted for the balance demanded by the plaintiff. His admissions and his testimony, and the manner in which he gave it, in connection with the fact that the policies which he signed and issued contained an express statement that the premium had been paid in full (see Laws 1895, c. 175, § 53), were sufficient to sustain the findings of the trial court.

Judgment affirmed.