In Error to the District Court oí the United States for the Southern Division of the Western District of Washington; Edward E. Cushman, Judge.

Action by the National Surety Company, a corporation, against Isaac Blumauer and others. There was a judgment for defendants, and plaintiff brings error.

Action for judgment upon an indemnity bond. At the conclusion of plaintiff's evidence the court dismissed the plaintiff’s action and entered judgment against the National Surety Company, plaintiff in error here. By writ of error the surety company brings the case for review. The facts are as follows:

The defendants in error, to be called, defendants, owned all except 12 shares of the capital stock of the State Bank of Tenino, which failed on September 17, 1914. Blumauer was president, Hays cashier, Mentzer vice president and director, and Campbell assistant cashier and director. Defendant, Elizabeth E. Mentzer is the wife of T. F. Mentzer, Jessie E. Campbell is the wife pf A. D. Campbell, and Eva Copping was the wife of David Copping, who died, but who, before death, conveyed his property to his wife. Defendants Blumauer, Hays, and Ora J. Hays, his wife, defaulted in the action. Thus the defendants proper herein are Mentzer and wife, Campbell and wife, and Mrs. Copping.

Prior to June 22, 1911, the bank applied to the surety company to become surety for the bank on a bond required by the laws of Washington to be taken by the county treasurer to secure the bank deposits of county funds. The application named the obligee to whom the bond was to run as “Treasurer, Thurston County, Washington.” The bond was requested as of June 22, 1911, to terminate June 22, 1912. Applicants agreed to pay $25 premium annually, and stated that the officers who were to give continuous personal attention to the affairs of the bank were Blumauer, president, Mentzer, vice president, and Hays, cashier. With this application was an agreement between the bank, through its president and cashier, and the surety company, wherein it is recited that the company is about to execute for the depository the bond ■described in the application, which is made part of the agreement, and, in •consideration of $1, the depository agrees with the company that the answers made in the application are true, and for the purpose of inducing the company to execute the bond without demanding collateral security from the depository, that the depository will pay to the company the premiums agreed in the application, and will at all times “indemnify and keep indemnified the company,” and save it harmless against all demands and liabilities which it ■should sustain in consequence of having executed the bond. The depository bond was dated June 22, 1911, and was signed by the bank by its president and cashier, and by the surety company. It binds the bank as principal and the surety company as surety unto “Robert Marr, individually and as county treasurer of the county of Thurston, state of Washington,” in the sum of $5,000. The condition is that whereas, Marr, as treasurer, “at the special' instance' and request” of the bank, has deposited or may hereafter deposit' with the bank certain moneys, etc., for which “the said treasurer as such may be responsible,” if the bank shall pay all the checks of the treasurer and hold harmless the above-named Robert Marr, individually and as such treasurer, from loss by reason of the deposit of funds, then the obligation is to be void; provided, however, that the surety company shall not be liable, except for loss of moneys belonging “to the said Robert Marr, treasurer, and which shall have been deposited with the aforesaid principal by the said Robert Marr, as treasurer aforesaid, or to his credit as such treasurer.” It is further provided that the surety company shall have the right to end its suretyship under the bond by giving notice to the obligee, etc. The indemnity agreement, dated June 22, 1911, recites that whereas, “the undersigned” had requested the surety company to sign and execute a bond for $5,000 in behalf of the bank “in favor of the treasurer of Thurston county, Washington, effective June 22, 1911, covering deposits of the said treasurer in said bank, reference to which bond or undertaking is hereby made for the purpose of certainty, and a copy of which instrument is or may be hereto attached.” It is agreed that, in consideration of the premises and of $1, the indemnitors will pay an annual premium of $25, as the compensation to the surety company “for the accommodation afforded the undersigned by the execution of said instrument by the company”; that they will keep harmless the surety company against loss which may occur by reason of haying executed the bond; that the surety company may take such steps as it may deem necessary to obtain its release under the bond or under any other instrument within the meaning of "section fifth” hereof. Section fifth is as follows: “That no act or omission of the company in notifying, amending, limiting, or extending the instrument so executed by the company shall in any wise affect our liability hereunder, nor shall we or any of us be released from this obligation by reason thereof; and we agree that the company may alter, change, or modify, amend, limit, or extend said instrument, and may execute renewal thereof, or other and new obligations in its place or in lieu thereof and without notice to us being expressly waived, and in any such case, we and each of us shall be liable to the company as fully and to the same extent on account of any such altered, changed, modified, limited, or extended instrument or such renewals thereof, or other or new obligations in its place or in lieu thereof, whenever and as often as made, as fully as if such instrument were described at length herein.” The seventh clause of the agreement binds not only the signers jointly and severally, but their respective heirs, executors, administrators, successors, and assigns (as the case may be), until the surety company shall have executed a release under its corporate seal. The eighth paragraph makes the covenants and collateral security or indemnity, if any, available by and on behalf of the surety company for its benefit, “as well concerning any or all former or subsequent bonds or undertakings executed for us, * * * as concerning the bond or undertaking such covenants, collateral securities, or indemnity shall have been made, deposited, or given.” The indemnity was signed by Blumauer, Mentzer, Hays, Campbell, and Copping as individuals, and by the bank toy Blumauer, as president, and Hays, as cashier.

When the depository bond and indemnity agreement were delivered, the $25 premium was paid to the surety company. Marr’s term as treasurer expired by law on January 8, 1913. Prior to June 22, 1912, when the first year of the bond which had been given would have expired, the bank, acting through Hays, who was one of the indemnitors, paid the surety company «$25 for a second year’s premium on the bond, to continue the bond until June 22, 1913. But on January 8, 1913, a new treasurer, W. H. Britt, succeeded Marr. Before June 22, 1913, or the date of the expiration of the second year of the bond ihe bank, again acting through Hays, vice president, paid' the surety company $25 premium for the purpose of extending the bond to June 22, 1914. Prior to June 22, 191-1, the bank, again acting through Hays, paid to the surety company the premium of $25 “for the renewal of the depository bond,” and advised the surety company ihat the county treasurer was Mr. Britt, who had succeeded Mr. Marr, and requested the surety company, if necessary, to make an indorsement to that effect, and, if necessary to issue a new bond, to do so and forward it. The surety company replied by inclosing a new bond duly executed in favor of W. H. Britt, county treasurer, effective June 22, 1914, and asking that the bank sign a new application, and that the treasurer send a release covering the former bond. Mr. Britt, as treasurer, delivered to the surety company a release, stating that its surety on Hie depository bond, dated June 22, 1911, in behalf of the bank, in favor of Robert Marr, treasurer of Thurston county, it was released from further liability thereon, “from and after the 22d day of June, 1914.” A new application, signed by the bank, by Blumauer, president, and Hays, cashier, was also made for bond to issue from Juno 22, 1914, to June 22, 1915.

These additional circumstances are more or less relevant:

Mr. Marr as treasurer, opened his account with the bank on June 20, 1911, and closed it on January 8, 1913, on which day he retired as treasurer and took from the hank a certificate of deposit for $9,974.16. This certificate was never cashed, and on January 15, 1913, when Mr. Britt opened his official account, he deposited this identical certificate with the bank, and on September 17, 1914, he had a balance on deposit of $12,823,58. When the bank failed the treasurer demanded that the surety company should pay its liability on its bond, amounting to $4,327.87. The surety company demanded that the defendants pay this, but defendants refused, and thereafter, on December 30, 1014, the surety company paid to the treasurer of the county $4,327.87.