National Surety Co. v. First Nat. Bank of Wetumpka

On Rehearing. As to the amount of recovery, appellant insists proper consideration has not been given the statement of the witness Anderson, receiver of the Tallassee bank, to the effect that he believed "the bank would pay a dividend in the amount of forty per cent." It is not pretended that any dividend had been paid plaintiff, or any one else, nor can it be controverted the foregoing was a mere estimate of the receiver as to what might be expected, and nothing more. Nor do we think it could successfully be contended that the facts, as stated in the original opinion, establish a prima facie case for recovery for the full penalty of the bond, limited, of course, by the provisions of paragraph 2 thereof. Fidelity Deposit Co. v. Bassett, 133 Wash. 77, 233 P. 325.

No defense as to further reduction was interposed, and we may add that, if interposed, we do not think it could have been sustained by evidence as to a mere estimate the receiver hoped or expected to pay depositors at some future date. There is nothing in the bond to the effect that liability thereon should be thus deferred to the date of settlement of the receivership. Indeed, the language of paragraphs 7 and 8, providing for subrogation of the surety as to such future dividends, indicate to the contrary, and nothing in the opinion rendered bears any relation to these provisions of the bond or any rights thereunder.

The application for rehearing is denied.

ANDERSON, C. J., and BOULDIN and FOSTER, JJ., concur.