State Ex Rel. Clark v. National Surety Co.

CONCURRING OPINION. We adhere to the ruling made in this case on its original submission and readopt the opinion of SHAIN, P.J., handed down at that time. However, it is not inappropriate for us to pass upon additional points suggested by the plaintiff.

It is stated that Davis, the trustee, was guilty of a breach of the bond requiring him to "receive and take charge of" a definite sum of money, to-wit: $3,128.39, because the sureties on Davis' bond as executor were solvent and the money could have been recovered from them by Davis, as trustee. It is also claimed that the bond was breached in that Davis, as trustee, "after his appointment, both by word and action misled the beneficiaries into thinking that he" had the money; that had he not misled the beneficiaries they could have proceeded against the sureties on Davis' bond as executor, but being misled they did not know the facts and did not pursue this course and finally, when the true facts were known, the sureties on Davis' bond as executor had become insolvent.

There is no provision in the bond that required Davis as trustee to proceed against the sureties on his bond as executor. Therefore, we need not speculate as to what would have been the outcome of such an unusual proceeding. Neither does the bond cover the fraud, misrepresentation or misleading information that Davis, as trustee, might have been guilty of. The wording of the bond to "receive and take charge of" certain money is not broad enough to cover the trustee's derelictions in these respects.

"The liability of a surety is measured by his contract and whether he is a gratuitous or compensated surety, while he is liable to the full extent thereof, such liability is strictly limited to that assumed by its terms, or, as the rule is otherwise stated, a surety is not held beyond the terms, or the strict, or the precise, or the clear, or the express *Page 82 terms of his contract; and the surety has the right to stand upon the strict, or precise, or the very terms of his contract; and to rely on the strict letter thereof." [50 C.J., pp. 71, 72, 73.]

There is no theory upon which the court could have rendered judgment against the defendant. Therefore, the judgment was erroneous. [Beall v. Miller, 207 Mo. App. 32, 36.] It is apparent that Davis, as trustee, turned over to the beneficiaries all of the money that he received in that capacity and, consequently, there was no breach of the bond. The inability of the plaintiff to recover being apparent it would serve no useful purpose to remand the case for another trial. Therefore, the judgment is reversed. All concur.