Inter-State Surety Co. v. Thompson

South Dakota Supreme Court

Inter-State Surety Co. v. Thompson

186 N.W. 115, 45 S.D. 91, 1922 S.D. LEXIS 1

CourtSouth Dakota Supreme Court

DecidedJanuary 10, 1922

DocketFile No. 4962

StatusPublished

This text of 186 N.W. 115 (Inter-State Surety Co. v. Thompson) is published on Counsel Stack Legal Research, covering South Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Inter-State Surety Co. v. Thompson, 186 N.W. 115, 45 S.D. 91, 1922 S.D. LEXIS 1 (S.D. 1922).

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Opinion

GATES, P. J.

This appeal is from a judgment dismissing the action; the defendant’s general demurrer to the complaint having been sustained, and the plaintiff having elected to stand upon the complaint.

[ 1 ] The complaint alleges that plaintiff is a corporation, engaged in the business of writing surety 'bonds; that defendant entered into a contract with Roberts county for the construction of highways; that defendant, as principal, arid plaintiff, as surety, entered into an undertaking with said county in the sum of $1,000 for the faithful performance of the contract, which undertaking is set forth in the complaint; that defendant “entered into an agreement with the plaintiff to furnish for him said bond, for which the defendant promised and agreed to pay the plaintiff as a premium on said bond the sum of $15 on each $1,000 worth of work actually done;” that defendant performed work under the contract aggregating, and was paid, the sum of $36,489.42; that the total premium due the plaintiff was the sum of $547.34, and that no part of the premium has been paid, except the sum of $15-

It is argued by respondent that, as the liability of appellant was only $1,000 it could only collect a premium of $15. It is argued by appellant that its risk in becoming liable for $36,000 of work was 36 times as great as if the work aggregated only $1,000, and that by reason of its continued exposure to risk it is entitled to receive the premium on each $1,000 of work.

[93]*93These matters are not before us, and we express no opinion thereon. The above-quoted portion of the complaint alleges an express promise <by defendant to pay as premium the sum of $15 on each $1,000 of work. The complaint, therefore, states a cause of action. Whether the proof will sustain the allegation is not for ús to conjecture.

[2] It is urged 'by respondent that all prior negotiations were merged in the undertaking, and therefore that extrinsic evidence as to agreements between plaintiff and defendant would be inadmissible. The undertaking is, and, being in the ordinary form of an undertaking, naturally would be, silent as to the matter of premium. The legal principle urged is- not applicable. The undertaking purports to define the liability of the makers to Roberts county. It does not purport to define the liability of 'the principal for the payment of premium.

The judgment is reversed, with directions to enter an order overruling the demurrer to the complaint.

ANDERSON, J., not sitting.

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GATES, P. J.

This appeal is from a judgment dismissing the action; the defendant’s general demurrer to the complaint having been sustained, and the plaintiff having elected to stand upon the complaint.

[ 1 ] The complaint alleges that plaintiff is a corporation, engaged in the business of writing surety 'bonds; that defendant entered into a contract with Roberts county for the construction of highways; that defendant, as principal, arid plaintiff, as surety, entered into an undertaking with said county in the sum of $1,000 for the faithful performance of the contract, which undertaking is set forth in the complaint; that defendant “entered into an agreement with the plaintiff to furnish for him said bond, for which the defendant promised and agreed to pay the plaintiff as a premium on said bond the sum of $15 on each $1,000 worth of work actually done;” that defendant performed work under the contract aggregating, and was paid, the sum of $36,489.42; that the total premium due the plaintiff was the sum of $547.34, and that no part of the premium has been paid, except the sum of $15-

It is argued by respondent that, as the liability of appellant was only $1,000 it could only collect a premium of $15. It is argued by appellant that its risk in becoming liable for $36,000 of work was 36 times as great as if the work aggregated only $1,000, and that by reason of its continued exposure to risk it is entitled to receive the premium on each $1,000 of work.

[93]*93These matters are not before us, and we express no opinion thereon. The above-quoted portion of the complaint alleges an express promise <by defendant to pay as premium the sum of $15 on each $1,000 of work. The complaint, therefore, states a cause of action. Whether the proof will sustain the allegation is not for ús to conjecture.

[2] It is urged 'by respondent that all prior negotiations were merged in the undertaking, and therefore that extrinsic evidence as to agreements between plaintiff and defendant would be inadmissible. The undertaking is, and, being in the ordinary form of an undertaking, naturally would be, silent as to the matter of premium. The legal principle urged is- not applicable. The undertaking purports to define the liability of the makers to Roberts county. It does not purport to define the liability of 'the principal for the payment of premium.

The judgment is reversed, with directions to enter an order overruling the demurrer to the complaint.

ANDERSON, J., not sitting.

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Bluebook (online)

186 N.W. 115, 45 S.D. 91, 1922 S.D. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inter-state-surety-co-v-thompson-sd-1922.