Phenix Insurance v. Weymouth , 34 Neb. 202 ( 1892 )

Post, J.

This is an action on the following bond:

“Know all men by these presents, that whereas H. E. Weymouth, of Papillion, in the cqunty of Sarpy, in the-state of Nebraska, has made application for the agency of the Phenix Insurance Company of Brooklyn, N. Y.: Now therefore, the said H. E. Weymouth as principal and John Zimmerman, of Papillion, in the county of Sarpy, and Rolf Harmsen, of Papillion, in the county of Sarpy, as sureties, in consideration of the said H. E. Weymouth being thus appointed as such agent and for value received, undertake and agree to and with said company, that the said H. E. Weymouth shall at all times during the continuance of such agency faithfully perform the duties as such agent according to the letters of appointment and instructions he may receive from time to time from said company, and shall faithfully account for, return to, and pay over to said company, its agents, attorneys, or assigns, all moneys, balances of account, notes and property coming into his possession or under his control, belonging or owing to said company, or in which said company may be interested, at such times and in such manner as may be directed and required by said company from time to time, and shall pay to and liquidate with said company, its agents, attorneys, and assigns, any and all advances of moneys made or claims and demands due or owing at any. time from him to said company, and shall keep and perform all the contracts and obligations made by him to and with said company, or in anywise relating to or growing out of his connection therewith, the said sureties waiving (as to the time the same shall be given) notice of any failure on the part of the said agent to faithfully perform any of the duties or obligations aforesaid.

“H. E. Weymouth, [l. s.]

“ John Zimmerman.

“Rolf Harmsen.”

The principal therein, H. E. Weymouth, upon the execution of said bond, was appointed agent for plaintiff and continued to act in such capacity from the 15th day of June, 1885, until the first day of January, 1886. In its petition plaintiff ^lieges that said Weymouth, while acting as its agent, converted to his own use and embezzled the sum of $575.41, the property of plaintiff, which he had collected as premium for insurance written by him, and which had been advanced to him by plaintiff in the course of his employment. Weymouth was not found, but the other defendants answered as follows:

“First — The defendants Rolf Harmsen and John Zimmerman answering for themselves only, state that they were sureties upon the said bond of H. E. Weymouth that as such they had no supervision or control of the business affairs and adjustments as between the said Phenix Insurance Company of Brooklyn and H. E. Weymouth.

“Second — Defendants allege that the said Phenix Insurance Company were grossly negligent in not requiring and compelling accountings and adjustments in the ordinary course of business with the said H. E. Weymouth, principal, during his agency; but that the said company, by its agents, knowingly and wrongfully, carelessly to the prejudice of said sureties, permitted and allowed the said H. E. Weymouth to receive and convert to his own use, moneys belonging to the said insurance company, and to receive continuously during the entire period of his agency and,con vert to his own use at various times sums of money belonging to said company, to the prejudice of the said bondsmen.

“ Third — Defendants further allege that the said Phenix Insurance Company knowingly extended to the said H. E. Weymouth credit to an unreasonable extent and beyond the bounds of ordinary prudence during his said agency, to the prejudice of said bondsmen and sureties;

“ Fourth — Defendants further allege that the said Phenix Insurance Company, by its agents, advanced cash to the said H. E. Weymouth $330 at one time, such advancement being unreasonable and wholly unnecessary for the purposes of the agency of the said H. E. Weymouth, nor was the same expended in that behalf, and such advancement was without the knowledge or consent of the said sureties and to their prejudice.

“ Fifth — The defendants allege payment, to-wit, that on or about- H. E. Weymouth paid the said Phenix Insurance Company one hundred dollars ($100).”

Subsequently, defendants were permitted to amend their answer by adding the following:

“ That the money claimed by the plaintiff to have been advanced by it to Weymouth, its agent, was not advanced by the company, but was by another, or other persons, or was advanced by H. B. Coryell in his individual capacity.”

The reply to all these allegations is a general denial.

The testimony clearly showed the conversion by Weymouth of the amount alleged. The principal contention was over the sum of $330 apparently advanced to Weymouth by plaintiff.

Defendants introduced as a witness Mr. Coryell, plaintiff’s agent, who gave the only testimony offered in support of the answer. His testimony was to the effect that of the $330 advanced, between $75 and $100 was to reimburse him,witness, on account of small sums advanced out of his own funds, and the balance, about $250, was for a traveling outfit for Weymouth to be used in canvassing for plaintiff. He further testified that such an advancement for such purpose is a customary transaction by insurance companies, including the plaintiff.

Mr. Weyman, a representative of the plaintiff’s company, testified that it was customary for plaintiff to advance money to agents canvassing for farm insurance in sums sufficient to enable them to carry on their business, and that the sum of $250 is not an unusual amount. Mr. Campbell, another witness, testified to the same effect.

This testimony is not disputed, and there is no reason apparent why it should have been wholly disregarded by the jury. There was no effort to sustain any of the defenses alleged except the fourth, and as to that there is a failure of proof. The motion for a new trial should have been sustained. The judgment of the district court is reversed and the case remanded for further proceedings therein.

Reversed and remanded.

The other judges concur.