McIntyre v. American Surety Co.

Citations

• 97 Kan. 629
• 156 P. 690
• 1916 Kan. LEXIS 366

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Indemnity Bond — Bond, Construed — Liability of Surety. In an action to recover upon a surety bond which, provided that the obligor would pay the shortage of the bonded party if his liability “is caused by robbery, fraud, defalcation, breach of trust or other intentional offense against the property of his employer, or which the latter may have entrusted to him, either as agent, employee or attorney,” there may be a recovery upon proof that the default of the bonded party was caused by his fraud or by a breach of trust; and a showing that he had embezzled the money or property entrusted to him was not necessary to a recovery.</p> <p>2. Same — Fraud, or Breach of Trust of Bonded Party — Burden of Proof. It devolved on the plaintiff to produce satisfactory evidence of the fraud or breach of trust of the bonded party and sufficient to overcome the presumption of honesty, but in such a case the strictness of proof required in a criminal proceeding is not essential to a recovery.</p> <p>3. New. Trial — Newly Discovered Evidence — Petition. A petition for a new trial upon the ground of newly discovered evidence to be sufficient must, among other things, set forth facts showing that the proposed testimony is newly discovered and that it could not with reasonable diligence have been obtained at the time of the trial, and a general averment that diligence had been exercised is a conclusion of law and is insufficient without a statement of the facts constituting the alleged diligence.</p>