75 Minn. 489 | Minn. | 1899
This is an action on a bond given by a depositary of public funds, the American Loan & Trust Company, and its sureties. The bond recites that the trust company has been duly designated as depositary of the county, and its conditions are that the trust company shall at all times hold the funds deposited with it subject to draft and payment on demand, and shall pay over, according to law, all funds which shall be deposited with it pursuant to such designation.
“That said American Loan & Trust Company did not well and truly hold said funds subject to draft and payment at all times on demand, and did not well and truly pay over on demand, according to law, said funds deposited in said bank, pursuant to the statutes mentioned in said bond or any part thereof.”
The answer of the sureties was, except that it admitted the execution of the bond, in legal effect a general denial. The trial court found upon the issues in favor of the plaintiff, except that there was no finding as to whether a demand was made for the payment of the funds on deposit with the trust company by the county treasurer. But there was a finding to the effect that on July 12, 1894, the trust company was insolvent, and duly made an assignment for the benefit of its creditors under the insolvency laws of the state, and that the assignee accepted the trust, entered upon the discharge of his duties, and at the time of the trial of this action was still acting as such assignee. As a conclusion of law, judgment, was ordered for the plaintiff for the amount claimed and interest. It was entered for the sum of $132,352, and costs, from which the defendants appealed.
1. The. appellants assign as erro'r the findings of the trial court to the effect that the trust company was designated a depositary, and that the county treasurer, after it was so designated, deposited the funds with it, for the reason that none of them are sustained by the evidence.
It was not necessary to show a legal designation of the trust company as a. depositary. It was sufficient to show that the trust company was a de facto depositary, and that the deposits were made in reliance upon the bond. Board of Co. Commrs. v. State Bank,
2. An interest-bearing time certificate of deposit was issued to the county treasurer by the trust company for $7,772.87 of the money deposited with it. The appellants claim that the sureties are not liable, under the bond, for the funds so deposited on the time certificate of deposit. The bond covered the deposit represented by the certificate. The precise question was decided adversely to the appellants at the present term, in the case of Board of Co. Commrs. v. Security Bank, supra, page 174.
3. A pass book, designated in the record as “Exhibit D,” was received in evidence, over the objection and exception of appellants. This is assigned as error.
This pass book contained the account of the trust company with the county of St. Louis. The entries therein were made by its authority, in the usual course of business with its customers, and show
4. It was conclusively proven on the trial by the records of the court, and the court found the fact to be, that before the commencement of this action the trust company made an assignment in insolvency of all of its property for the benefit of its creditors. By this act the trust company incapacitated itself from keeping the conditions of its bond; for, after the assignment, it had no further control of its property or business, and could not comply with any demand for the payment of deposits. No demand was necessary, under such circumstances. Board of C. H. & C. H. Commrs. v. Irish-American Bank, 68 Minn. 470, 71 N. W. 674.
The appellants assign as error the admission of the evidence as to the making of the assignment by the trust company and the finding based thereon. Their contention is that the complaint alleged a demand for the payment of the fund, and the court received proof of facts which rendered a demand unnecessary; that, if such new issue was to be tendered, they were entitled to the right and opportunity to meet it. This may be conceded, but there was not the slightest suggestion on the trial that the appellants were or could be prejudiced by the evidence offered. It is difficult to conceive
But proof of the fact that the trust company had incapacitated itself, by its assignment, to perform the conditions of its bond, was competent, under the allegations of the complaint. One of the breaches of the condition of the bond assigned in the complaint was that the trust company did not well and truly hold the funds deposited with it subject to draft and payment at all times on demand. This condition of the bond in view of the fact that the trust company became the owner of the funds deposited (see Board of Co. Commrs. v. Citizens’ Bank, supra) must be construed as requiring the depositary to hold and keep itself in readiness at all times to pay the amount of the funds on demand. Proof that the trust company made the voluntary assignment established a breach of this condition of the bond, and was responsive to the allegations of the complaint.
5. The only remaining assignment of error meriting special men-| tion relates to the failure of respondent’s counsel to furnish, on the [ demand of some of the appellants, a bill of particulars of the account between the trust company and the county.
The counsel for respondent, insisting that the appellants were not entitled to a bill of particulars as a matter of right, served one, as a matter of grace, after the time limited for such service if he was bound to furnish it, which was returned by the appellants. It
Judgment affirmed.