Hassinger v. Ammon

Pee. Curiam,

This suit is on defendants’ penal bond, the condition of which is fully recited in the charge and need not be repeated. On the trial, they submitted seven points for charge, the refusal of which constitutes the first seven specifications of error. In their fourth point the court was requested to say: “ As the bond in suit purports to be a guaranty or indemnity bond, it must first appear that the association was exhausted before an action against the guarantors will lie, and there being no evidence that any assessment was made, or that any effort was made to compel an assessment on the members of the association for the payment of these certificates, if they ever became beneficial, this action against the guarantors is premature, and there can be no recovery.” The vice of this proposition is the assumption that defendants’ obligation to plaintiff is that of guarantors and not sureties. According to the condition of their bond they are not guarantors, and hence the point was rightly refused.

The fifth, sixth and seventh points are also predicated of assumptions of fact and inferences of law, some of which were unwarranted by the evidence. As presented, it would have been error to have affirmed either of these points ; and the same may be said of the first, second and third points. The validity of the “ Equitable Beneficial Society’s ” charter, and the alleged illegality of the business that was transacted by it, cannot be determined in this action. If the propriety of chartering such associations, under vague and indefinite articles, were properly before us, we might have a very decided opinion to express as to the care that should be exercised by courts having jurisdiction of the subject.

In this case, the right of the plaintiff to recover, and the amount to which he was entitled, under the condition of the bond, if anything, depended on questions of fact which were for the exclusive consideration of the jury. The testimony was submitted to them in a clear and impartial charge, which appears to be free from any error that would warrant a reversal of the judgment. Considered in connection with other portions of the charge, there is no error in the excerpt recited in the last specification.

Judgment affirmed.