State v. United States Guarantee Co. , 207 N.C. 725 ( 1935 )

CoNNOR, J.

The contentions of the plaintiffs on their appeal to this Court (1) that there was error in the refusal of the judge of the Superior Court to sign the judgment tendered by the plaintiffs at the trial of this action, providing that the sum of $122,716.35 shall bear interest from the date of the commencement of the action, to wit: 23 December, 1931; and (2) that there is error in the judgment as signed providing that said sum shall bear interest from the date of the judgment, to wit: 6 January, 1934, cannot be sustained.

The jury, under instructions by the court, to which the plaintiffs did not except, in answer to the 11th issue, found that the amount now due by the Central Bank and Trust Company to the plaintiffs, on account of deposits made in said Bank and Trust Company of money belonging to the plaintiffs, is $122,716.35. The Central Bank and Trust Company was declared insolvent on 19 November, 1930. Its assets, now in the possession of the Commissioner of Banks for liquidation, are not sufficient to pay its liabilities in full. For this reason, none of its creditors are entitled to recover interest on their claims since 19 November, 1930. In re Trust Company, 206 N. C., 251, 173 S. E., 340. The defendants, as sureties of the Central Bank and Trust Company,'under their several bonds, are liable to the plaintiffs only for the amount for which the Central Bank and Trust. Company is liable to them. This amount as found by the jury is $122,716.35. The plaintiffs are entitled to recover interest on this amount only from the date of the judgment, C. S., 2309. If the Central Bank and Trust Company, the principal in the bonds sued on, was liable for interest on the amount now due to the plaintiffs, then the defendants, as sureties on the several bonds sued on in this action, would also be liable for interest: Provided, however, the amount due, plus interest, did not exceed the penal sum of the bond in which the defendants are severally sureties. The measure of the surety’s liability is the liability of the principal, provided such liability does not exceed the penal sum of the bond. S. v. Martin, 188 N. c., 119, 123 S. E., 631.

The contention of the defendant Century Indemnity Company on its appeal to this Court that there was error in the instruction of the trial court to tbe jury with respect to the 12th. issue cannot be sustained. The burden of this issue was on the defendant Century Indemnity Company. The trial court instructed the jury that if they believed all the evidence and found the facts to be as all the evidence tended to show, they would answer the 12th issue “No.”

There was no evidence at the trial tending to show that Plato D. Ebbs, treasurer of the North Carolina Park Commission, was authorized to consent on behalf of the plaintiffs to the cancellation of the bond executed by the Century Indemnity Company, or that he did consent to such cancellation.

The evidence offered by the defendant Century Indemnity Company tended to show that the bond which it had executed as surety for the Central Bank and Trust Company, on 22 July, 1929, was returned to said defendant at its home office in Hartford, Connecticut, through the mail, on or about 15 July, 1930, by the Central Bank and Trust Company, and that said bond had been delivered to the Central Bank and Trust Company by Plato D. Ebbs on 15 July, 1930. There was no evidence tending to show that when the bond was delivered to the Central Bank and Trust Company, at its request, by Plato D. Ebbs, he consented to its cancellation by the defendant Century Indemnity Company. There was evidence tending to show that on or about 24 May, 1930, the defendant requested the Central Bank and Trust Company to return the bond for cancellation, but there was-no evidence tending to show that the defendant at any time advised Plato D. Ebbs, personally or as treasurer of the North Carolina Park Commission, that it wished to be relieved of its liability on account of the bond. After the bond had been returned to the defendant by the Central Bank and Trust Company, the defendant mailed a letter addressed to Plato D. Ebbs, treasurer of the North Carolina Park Commission, at Raleigh, N. C., advising him that the bond had been returned to the defendant for cancellation, and requesting him to confirm its cancellation. The defendant received no reply to this letter, although there was evidence tending to show that the letter was received by Plato D. Ebbs. The defendant then, without further action, placed the bond in its file for canceled bonds, where it remained until the trial of this action.

Other assignments of error relied on by the defendant on its appeal have been considered. None of them can be sustained. In view of the answer of the jury to the 12th issue, we do not deem it necessary to discuss these assignments of error. The judgment is affirmed.

No error in either appeal.