Title Guaranty & Surety Co. v. Nichols, 224 U.S. 346 (1912)

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Title Guaranty & Surety Co. v. Nichols

No. 102

Argued December 13, 1911
Decided April 8, 1912
224 U.S. 346

ERROR TO THE SUPREME COURT

OF THE TERRITORY OF ARIZONA

Syllabus

While liability under a surety bond for honesty of an employee would be defeated if the loss was due to neglect of the employer to take the precautions required by the bond, the condition is subsequent, and not precedent, and there is no occasion for an averment in respect thereto; it is a matter of defense that must come from the other side, upon whom the onus rests.

Where the evidence, as in this case, shows that examinations were made, it is for the jury to determine whether reasonable diligence had been used in making them.

The certificate of correctness of employee’s accounts on obtaining renewals of surety bond for his honesty held in this case not to be a warranty, but a certificate that his books had been examined and found correct.

The mere fact that the examination, if made by a reasonably competent person, filed to discover discrepancies covered by false entries and bookkeeping devices would not defeat renewals of the policy.

On appeals from the courts of the territories, questions of weight and credibility of evidence are not for the consideration of this Court.

12 Ariz. 405 affirmed.

The facts, which involve the liability of a surety company on a fidelity bond given to protect a bank against dishonesty of its cashier, are stated in the opinion.