Opinion
No. 44199.
December 13, 1938.
EVIDENCE: Best evidence — unsigned copy of fidelity bond — 1 inadmissible. In action by a surety company against defendant, who was covered by a fidelity bond and who agreed to indemnify plaintiff against loss sustained by reason of its executing fidelity bond in his behalf, it was error to admit in evidence instrument purporting to be a certified copy of the bond, but containing no signatures and which was admittedly no true and genuine copy of original bond.
PRINCIPAL AND SURETY: Loss on fidelity bond — recovery by surety
— directing verdict.
Appeal from Council Bluffs Municipal Court. — HARRY L. ROBERTSON, Judge.
The appellant was covered by a Fidelity bond issued by the plaintiff to Larus Bros. Company, defendant's employer. This action was commenced to recover an alleged shortage of property belonging to the employer and which was delivered or consigned to the defendant for sale and for which defendant failed to account, the shortage amounting to $461. This suit is brought against the defendant who, in the signed application for the bond, agreed to indemnify the plaintiff company against all loss which the company might sustain by reason of executing said bond. The answer contained a general denial and other matters of defense not necessary to specifically mention. A jury was impaneled and trial had at the conclusion of which the court directed a verdict for the plaintiff and defendant has appealed. — Reversed.
Capel, Ardell Jackson, for appellant.
Walter S. Stillman and J. Leo Connolly, for appellee.
[1] As this case must be reversed, it is not necessary or proper to make any extended statement of or comment concerning the facts. Neither is it necessary to go into the matters raised by motion of defendant to direct a verdict which was overruled by the court except to say that the plaintiff offered in evidence what purported to be a certified copy of the bond but, on cross-examination, it developed that the copy sought to be introduced contained no signatures and, hence, was not a genuine or true copy of the original. Aside from the question of whether the showing was sufficient to permit the introduction of a certified copy, a matter which we do not pass upon, it was certainly improper to admit in evidence, over proper objections of the defendant, an instrument containing no signatures and which was admittedly not a true and genuine copy of the original.
[2] There was also a direct conflict in the evidence offered by the plaintiff and that given by the defendant and, under such state of the record, it was improper for the court to direct a verdict for the plaintiff.
For the reasons indicated, the case must be and is reversed. — Reversed.
SAGER, C.J., and all JUSTICES concur.