Travelers Indemnity Company v. Askew

280 So. 2d 469
CourtDistrict Court of Appeal of Florida
DecidedJuly 12, 1973
DocketS-121
StatusPublished
Cited by8 cases

This text of 280 So. 2d 469 (Travelers Indemnity Company v. Askew) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Travelers Indemnity Company v. Askew, 280 So. 2d 469 (Fla. Ct. App. 1973).

Opinion

280 So.2d 469 (1973)

The TRAVELERS INDEMNITY COMPANY, a Corporation, Appellant,
v.
Reubin O'D. ASKEW, for the Use and Benefit of American Heritage Life Insurance Company, Appellee.

No. S-121.

District Court of Appeal of Florida, First District.

July 12, 1973.

*470 George Stelljes, Jr., of Marks, Gray, Conroy & Gibbs, Jacksonville, for appellant.

Nelson M. Harris, Jr., of Knight, Kincaid, Poucher & Harris, Jacksonville, for appellee.

PER CURIAM.

Defendant, Travelers Indemnity Company, a corporation, has appealed a summary final judgment rendered in favor of the use-plaintiff, American Heritage Life Insurance Company, awarding to the latter a money judgment on four claims made by it against the surety bond issued by Travelers.

Defendant, First Mortgage Company of Daytona Beach, a corporation, qualified to do business as a mortgage broker under the mortgage brokerage act of this state.[1] In order to exercise the license granted it, First Mortgage Company procured from Travelers and filed with the Department of Banking and Finance of Florida a surety bond in the amount of $5,000.00. The provisions of the mortgage brokerage act, pursuant to which the surety bond was given, provide in pertinent part as follows:

"Every person, firm, association, or corporation licensed as a mortgage broker, shall deposit with the department prior to doing business as such, a bond in the amount of five thousand dollars, executed by the mortgage broker as principal and a surety company authorized and licensed to do business in the state, as surety. The bond shall be conditioned upon the faithful compliance of the broker so licensed with the provisions of this act and that he will conduct the business of a mortgage broker in a reliable and dependable manner. The bond shall run to the state for the benefit of any person injured by the wrongful act, default, fraud or misrepresentation of the broker or its solicitors. Before any person, firm, association or corporation shall have any right of action or any right whatsoever against the principal or the surety under the bond and before any such right of action or any such right whatsoever shall exist or arise, such person, firm, association or corporation, within a period of five years after the termination or cancellation of the bond must have given to the department, the surety and the principal written notice of claim under the bond. The giving of such notice of claim under the bond within said period of five years shall be a condition precedent to any right of action or right whatsoever against the principal or the surety and the failure to give such notice as aforesaid shall render the obligation null and void and of no effect as to such person, firm, association or corporation. Only one bond shall be required of any person, firm, association, or corporation irrespective of the number of mortgage brokers employed by or who are members of said firm, association, or corporation."[2]

The conditions of the surety bond issued by Travelers conform to the language of the statute and is in the following words and figures, to wit:

"The conditions of the foregoing obligation are that the Principal, the above bounded, a licensed Mortgage Broker under Chapter 494, Florida Statutes, is obligated to faithfully comply with the provisions of said act and that he will conduct the business of a Mortgage Broker in a reliable and dependable manner and that this bond is given for the benefit of any person injured by the wrongful act, default, fraud, or misrepresentation of the Mortgage Broker and/or its solicitor."

*471 The use-plaintiff, American Heritage, filed its complaint against the mortgage broker and Travelers, in which it alleged four different instances in which it had entered into agreements with the broker to represent it in connection with mortgage loans to be made by American Heritage to four different individuals. The complaint alleged that the broker failed willfully or negligently to properly handle the mortgage loans contrary to the obligations imposed upon it by the mortgage brokerage act and in violation of the terms and conditions of its surety bond. The complaint alleged that as a result of the broker's failure to reliably and dependably perform its duties and obligations in accordance with its agreements, American Heritage suffered losses on the four loans made by it in the total amount of $8,211.45 for which it claimed judgment plus interest at the legal rate and court costs.

After filing its defenses to the action, Travelers filed in the cause its consent to entry of judgment in favor of American Heritage but only in the sum of $5,000.00 plus such interest as the court determined was due upon that sum together with legally taxable costs. By this consent Travelers agreed to pay the full amount of the surety bond furnished by it but insisted that it was not liable for the amount of damages suffered by American Heritage in excess of the maximum limits of the bond.

By the summary judgment appealed herein the trial court rejected Traveler's contention and entered final judgment against it for the full amount of damages claimed by American Heritage to have been suffered by it on the four mortgages handled by its mortgage broker. The amount of the judgment was in the sum of $8,211.45 principal together with the sum of $1,240.80 allowable interest plus taxable court costs.

By this appeal Travelers contends that the full extent of its liability on the surety bond furnished by it is the penal sum recited therein of $5,000.00, and that the trial court erred in imposing upon it the full amount of damages suffered by American Heritage in excess of the bond limits.

The general rule recognized by the almost unanimous weight of authority in this country is that recovery on a penal bond is limited to the amount of the penalty named in the bond, with interest from the date of breach. This general rule prevails even though the bond is for the protection of more than one person or is subject to renewal from term to term.[3] The only exception to the general rule is in those instances where the wording of the bond or the statute pursuant to which it was given indicates an intention to extend the liability of the bond beyond the maximum sum stated therein.[4]

In the early case of Humphreys v. Leggett[5] the Supreme Court of the United States construed the provisions of a surety bond furnished under the laws of Mississippi and conditioned for the faithful execution by a county sheriff of the duties of his office. In that case the court held that the limit of the surety's liability was the penal amount set forth in the bond and that, if the claims made against it exceeded the total amount of the bond, the claims should be prorated to the full amount but not in excess of the bond limits.

A similar ruling was pronounced by the Court of Appeals of New York in the case of Guffanti v. National Surety Co.[6] In construing the liability of a surety on a bond furnished by it for a person engaged in the business of selling steamship tickets, as required by the laws of New York.

Perhaps the most elucidating opinion dealing with the principle of law now under *472 consideration is one rendered by the Supreme Court of South Carolina in the case of Brown v. National Surety Corporation.[7] That case involved an action for damages brought by an injured plaintiff against a surety company on a highway patrolman's bond furnished by it pursuant to the requirements of a state statute.

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280 So. 2d 469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/travelers-indemnity-company-v-askew-fladistctapp-1973.