Mitchell v. Smith

LANGDON, J.

This is an appeal by the defendant Maryland Casualty Company from a judgment for $5,434 against it upon a surety bond.

The appeal is upon the judgment-roll alone and «the contentions made are that the complaint does not state a cause of action and the findings do not support the judgment.

The facts, as disclosed by the findings, are, briefly: That prior to December 17, 1924, defendant E. L. Smith was the owner of the stock of the Foss-Smith Company and was an officer thereof and also the general manager and in direct control of the entire business of said corporation; that during all the times mentioned in the findings, the defendants John

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C. Platt and E. L. Smith were agents of the Foss-Smith Company, a corporation, acting in the full scope of their employment and the regular course of business of said corporation. The appellant was authorized to engage in doing a general surety business in the state of California and did, on or about the thirtieth day of October, 1924, execute and deliver to the commissioner of corporations of the state of California a bond in the form prescribed by him and as required by the Corporate Securties Act of the state of California [Stats. 1917, p. 673], and amendments thereto [Stats. 1923 p. 87, Stats. 1925, p. 962]; that said bond was for the sum of $5,000, defendant E'. L. Smith being the principal therein and the Maryland Casualty Company being the surety therein; that said bond and the said surety guaranteed the faithful compliance with, and observance of, all the provisions of law on the part of the said E. L. Smith and his agents and provided that upon failure to comply with the provisions of law in so far as the same may apply to any and all transactions carried on by said principal as such broker, the said principal and surety should be liable to any and all persons who may suffer loss by reason thereof; that said bond was canceled on November 18, 1924, being wholly superseded for all purposes for which it had been executed and delivered by a bond executed and delivered on said eighteenth day of November, 1924, to the commissioner of corporations of the state of California, which said bond was for the sum of $5,000, which latter bond contained substantially the same provisions as the prior one. Said bond, executed and delivered on the eighteenth day of November, 1924, remained in full force and effect during all of the month of December, 1924, and was, thereafter, continued in full force and effect by a continuation certificate executed by said Maryland Casualty Company and filed with the commissioner of corporations of the state of California.