Commonwealth v. Taylor , 236 Pa. 549 ( 1912 )

Opinion by

Mr. Justice Elkin,

This suit was brought against the principal and sureties on the bond of a trustee. The record does not satisfactorily explain the conditions under which the bond was given, but in view of the pleadings this does not become a vital question in the case. The sureties demurred to the statement without filing an answer. They stand upon the legal position that the averments in the statement of claim do not disclose a cause of action against the sureties. This position is asserted upon the ground that the facts averred do not show a default by the principal after the execution and approval of the bond, and that the sureties are not liable for defaults which may have occurred prior to that time. To this contention there are two answers: First, it is averred that the trustee “did not make faithful appropriation of the estate and effects committed to him and in his hands and custody, as said trustee, before, at the time and after the execution and delivery of said writing obligatory”; and, second, such a defense, if good at all, depends upon the facts, which should be set out in an affidavit of defense. The facts averred in the statement made out a prima facie cause of action, which required a defense to be set up. This was not done. The demurrer admitted the facts and gave sufficient warrant for the entry of judgment by the court below. The learned counsel for appellants invoke the rule that bonds of the character involved in this case should be construed as intended presumptively to cover future losses, and not past defaults, unless there is something in the bond itself, or in the surrounding circumstances to indicate a different intention. The bond was conditioned for the faithful discharge by the trustee of his duties, and the sureties undertook to answer for failure of the trustee to “make faithful appropriation of the estate and effects committed to him.” As hereinbefore stated, it was averred that the trustee, before and after the execution of the bond, had failed to make faithful appropriation of the estate committed to him. There is nothing in this record to show when the default in fact occurred. The trustee was appointed in 1881 and filed in 1904 his seventh account. The bond in suit was given in 1905. The litigation which resulted in surcharging the trustee did not terminate until 1907. There was no adjudication of the rights of the parties up to that time, and no one could say whether there had been a prior default. In this state of the record, the sureties are not in position to deny their liability upon a bond given to answer for the trustee’s faithful discharge of duty and to properly account for the trust estate. This view makes it unnecessary to discuss the general liability of sureties on bonds of this character.

Judgment affirmed.