
    Fidelity and Casualty Company v. E. E. Brown et al.
    
    No. 13,695.
    (77 Pac. 111.)
    SYLLABUS BY THE COUKT.-
    
      Bond—Conversion of Insurance Premiums by Agent—Liability of Surety on Bond. Iri an action on the bond of an agent of an insurance company to recover the amount of certain collected and unremitted premiums it is error to sustain a motion to strike from the petition certain premiums charged in the account because collected outside the agent’s territory, where the language describing his territory is ambiguous and susceptible of different interpretations. Under such circumstances, whether the premiums were collected within the agent’s territory is a question of fact.
    - Error from Cherokee district court; A. H. Skid-more, judge.
    Opinion filed June 11, 1904.
    Reversed.
    
      A. & G. S. MacDonald, and G. B. Skidmore, for plaintiff in error.
    
      Sapp & Wilson, for defendants in error.
   The opinion of the court was delivered by

Gkeene, J. :

The plaintiff in error, which is an insurance company, appointed one E. E. Brown its agent, with power to solicit insurance, issue policies, and collect premiums. Brown gave a bond, with W. F. Sapp as surety, for the faithful performance of his duties. This action was brought on this bond to recover defaults made by him. The company prosecutes error to reverse a judgment in favor of defendants. • Plaintiff’s first contention is that the court erred in striking from the petition certain premiums collected by Brown for risks taken by him in Emporia and Wichita. These items were stricken out on the ground that Emporia and Wichita were outside the territory for which Brown was bonded. The contract of appointment is as follows: “The Fidelity and Casualty Company, of New York, . . . has appointed the said E. E. Brown as agent for the following territory : Southeastern Kansas, including Parsons and Galena, with headquarters at Galena, Kansas.’’ The language used in defining the territory is ambiguous and susceptible of more than one interpretation. The court could not, therefore, say, as a matter of law, that Emporia and Wichita were not within Brown’s territory. That is a question of fact which should have been submitted to the jury.

Plaintiff contends that it should have had judgment on the pleadings, or, rather, that defendant should not have been permitted to introduce any evidence tending to show that the items set out in the charges made against Brown were not true, for the reason that plaintiff’s petition was sworn to and the answer was not verified. We find attached to the petition, as an exhibit, this itemized account, to which is attached a form of an oath signed by Robert J. Hill, as secretary and treasurer of the' Fidelity and Casualty Company,, but to this there is no jurat. The original petition was subsequently amended twice, but in neither amendment do we find any reference to the exhibit. Upon this question we think no error was committed-For the reason assigned the judgment is reversed,, and the cause remanded for further proceedings.

All the Justices concurring.  