McGurren v. Garrity (Cal.). McKay v. Joy (Cal.).. 839 (Mont.).. 889 940 McKinney, Williams v. (Kan.). McMasters, Palmer v. (Mont.). Mitchell, Cohen v. (Cal.). 4 Palmer v. McMasters (Mont.). 65 Palmer v. Murray (Mont.). 649 Parmentier v. Pater (Or.).. 564 Pater, Parmentier v. (Or.).. People v. Ah Toon (Cal.). 898 896 59 59 311 Montana Copper Co. v. Dahl (Mont.) 894 People v. Barnes (Idaho).. 532 Montandon v. Walker (Idaho).. 608 People v. City of Riverside (Cal.)... 662 Montgomery v. Superior Court (Cal.) 720 People v. Hampton (Utah)... 508 Mooney, Keyes v. (Or.).. 400 People v. Holladay (Cal.). 655 Moore, Estate of (Cal.).. 315 People v. Hopt (Utah).. 407 Moore. In re Estate of (Cal.). 164 People v. Hull (Colo.). . 34 More, People v. (Cal.). .461, 463 People v. May (Colo.). 34 Morrell, Waterman v. (Cal.). 71 People v. More (Cal.). .461, 463 Morris, Appeal of (Mont.). Morrison, Kansas City, Ft. S. & G. R. Co. v. (Kan.)... 225 People v. Sheldon (Cal.).. 457 Morton v. Bartning (Cal.). 146 People v. Spruance (Colo.). 628 Motherwell v. Taylor (Idaho). 417 People v. Thompson (Cal.). 833 Mound City P. & C. Co. v. Commer People, Bachman v. (Colo.). 42 People, Bradley v. (Colo.). 783 Moyle, Lehi Irrigation Co. v. (Utah). Mullins v. Wieland (Cal.).. 867 People, Hughes v. (Colo.).. 50 92 People, Kent v. (Colo.).. 852 Multnomah St. Ry. Co. v. Harris (Or.).. 402 People, Larimer Co. Reservoir Co. v. (Colo.).. 794 People, Minich v. (Colo.). 843 People, Petite v. (Colo.).. 738 Perkins, Budd v. (Mont.).. 609 Peterson v. Hubbard (Cal.). 585 Petite v. People (Colo.). Peyton v. Peyton (Kan.)... 369 Phillips, People v. (Cal.), 447 Pickard, Brown v. (Utah). 4 622 916 103 622 479 312 573 896 Porter, California Beet Sugar Co. v. Nagle v. United States (Wyo.).. 936 Poupion v. Muzio (Cal.). 97 Nathan v. Sutphen (Cal.)... 110 Power v. Gum (Mont.). 575 National Ass'n of the F. & M. Mut. Aid Ass'n, State v. (Kan.).. Prescott v. Heilner (Or.). 403 Nelson v. Oregon Ry. & Nav. Co. Co.(Kan.).. 464 (Or.).... 321 Purdum v. Taylor (Idaho). 607 Renton v. Cannon (Cal.).... ...... 104 Superior Court, Acker v. (Cal.)..... 109 180 301 Rutherford v. Talent (Mont.)...821, 886 St. George, Darrow v. (Colo.)....... 791 San Pedro & C. D. A. Co., Lamb v. Savery, Milligan v. (Mont.). Schammel, Fanning v. (Cal.). Shaft, Atchison, T. & S. F. R. Co. v. Sharon v. Sharon (Cal.). . Shimmell, Northern Pac. R. Co. v. Silva, George v. (Cal.). Silver City, D. & P. R. Co., Murray v. (N. M.).. Smith v. Robarts (Cal.) 720 674 110 162 424 Taylor, Motherwell v. (Idaho).. 417 607 432 525 Territory v. Burns (Mont.).. 894 Territory v. Carland (Mont.)....... 578 420 Territory v. County of Yellowstone 427 (Mont.) 918 536 599 598 936 .253, 595 605 356 67 Territory v. Farrell (Mont.).. 376 Territory v. Kinney (N. M.). 74 Territory v. Remuzon (N. M.).. 202 Territory, Booth v. (Wyo.).. Texas. S. F. & N. R. Co. v. Orman (N. M.). Thews, Carson v. (Idaho).. 457 Thomas, Williams v. (N. M.).. Thompson v. Reno Savings Bank (Nev.).. .121, 882, 883 Thompson, Guardian Fire & Life Assur. Co. v. (Cal.). 464 187 889 257 369 Thompson, Mogan v. (Or.).. 337 Town of Redwood City v. Grimmen- 1, 2 564 833 663 ..560, 562, 563 348 841 884 537 922 597 Travelers' Ins. Co., Rodey v. (N. 293 Snow, United States v. (Utah).. Tully v. Tully (Cal.). Twell v. Twell (Mont.). .... Solliday, Hammond v. (Colo.)...... 781 Underwood v. Birdsell (Mont.) United States v. Fuller (N. M.).. United States v. Snow (Utah).. 755 501, 686, 697 393 United States, Nagle v. (Wyo.)..... 936 233 United States. Post v. (Wyo.). 936 United States, Swan v. (Wyo.)..... 931 761 55 Valdez, Bath v. (Cal.).. 200 Victor M. & M. Co., Martin v. (Nev.) 336 State v. County of Washoe (Nev.).. 123 State v. Guettler (Kan.). 424 Walker v. Braden (Kan.)... Walker, Martin v. (Cal.). Walker, Montandon v. (Idaho).. Walsh v. Blakely (Mont.). Walton, Atchison, T. & S. F. R. Co. v. (N. M.). . . ... ..... 770 Wood, In re (Kan.).. ... 202 Woolfolk v. Woolman (Mont.).. 445 80 Woolman, Woolfolk v. (Mont.)... 445 293 Wright v. County of Gallatin 727 (Mont.).. 99 942 Yick Wo, In re (Cal.)....... 543 139 723 Younger v. County of Santa Cruz 92 (Cal.). 103 610 265 Zimmerman v. Franke (Kan.)................ 747 THE Pacific Reporter. VOLUME IX (68 Cal. 208) SUPREME COURT OF CALIFORNIA. GUARDIAN FIRE & LIFE ASSUR. Co. v. THOMPSON and others. (No. 9,304.) Filed December 21, 1885. PRINCIPAL AND SURETY-BOND OF EMPLOYE-DISCHARGE OF SURETY. A person taking a bond for the future good conduct of an agent already in his employment must communicate to a surety his knowledge of the past criminal misconduct of such agent in the course of such past employment, in order to make such bond binding. The mere non-communication of such knowledge, irrespective of motive or design, is a fraud in law, which will invalidate the obligation. Department 2. Appeal from superior court, city and county of San Francisco. Chickering & Thomas, for appellants. Langhorne & Miller, for respondent. MYRICK, J. The defendant Thompson as local agent of plaintiff, gave a bond with his co-defendants as sureties, for the faithful performance of his duties and for the payment to plaintiff of such sums as he might receive for premiums on insurance. This action is on the bond. The court below found that for some time previous to the execution of the bond in suit, Thompson acted as agent of plaintiff, and in such capacity defrauded plaintiff of $2,000 premiums collected by him, and that the general agent of plaintiff well knew of such defalcation before the execution of the said bond; and that neither said general agent nor any officer or agent of plaintiff informed the sureties of such defalcation, but on the contrary concealed and suppressed the same from said sureties. v.9p,no.1-1 1. The principle of law applicable to the facts of this case is thus stated in Brandt, Sur. § 367: * * ** "If the party who takes a bond for the conduct of the principal in an employment knows at the time that the principal is then a defaulter in said employment, and conceals the fact from the surety, such concealment is a fraud upon the surety, and discharges him. An agent for the sale of coal on commission, who by agreement was bound to turn over his receipts to his employers, within a specified time, was largely in arrear, and was required by his employers to find security, and a surety became bound for him to the extent of £1,000. The agreement of suretyship recited the terms of dealing between the employer and the agent, but the fact of the indebtedness was concealed from the surety. Held, the surety was discharged, on the ground that under the circumstances the recitals in the agreement amounted to an active misrepresentation.' "A person taking a bond for the future good conduct of an agent already in his employment, must communicate to a surety his knowledge of the past criminal misconduct of such agent in the course of such past employment in order to make such bond binding. The mere non-communication of such knowledge, irrespective of motive or design, is a fraud in law, which will invalidate the obligation." (Sooy v. State, 39 N. J. Law, 135.) "We think there can be no doubt, either upon principle or authority, that where an agent has acted dishonestly in his employment, the principal, with knowledge of the fact, cannot accept a guaranty for his future honesty from one who is ignorant of the agent's dishonesty, and to whom the agent is held out by the principal as a person worthy of confidence. The failure to communicate such knowledge, under such circumstance, would be a fraud upon the guarantor. The bad faith in withholding from the guarantor such information, so material to the risk assumed, is manifested not only by the fact that the dishonest character of the agent was peculiarly within the knowledge of the principal; but the holding of him out as a person entitled to confidence by continuing him in the service, was equivalent to a declaration that the principal had no knowledge of the dishonesty of the agent." Dinsmore v. Tidball, 34 Ohio St. 418. Many other cases, to the same effect, might be cited, but the above are sufficient to illustrate and sustain the principal involved. A few cases to the contrary are presented, but the weight of authority is as above stated. The judgment is affirmed. We concur, THORNTON, J., MORRISON, C. J. (2 Cal. Unrep. 594) GUARDIAN FIRE & LIFE ASSUR. Co. v. THOMPSON and others. (No. 9,273.) APPEAL DISMISSED. Filed December 21, 1885. Appeal dismissed on the ground that the court had jurisdiction of another appeal on the merits. Whether a court has power to grant leave to amend a notice of intention to move to set aside the judgment and for a new trial by inserting in place of the word "judgment" the word "decision," quære. Department 2. Appeal from superior court, city and county of San Francisco. Langhorne & Miller, for appellants. |