69 Iowa 269 | Iowa | 1886
I. W. B. Buggies was elected treasurer of Carroll county at the general election in the year 1881. He was re-elected at the general election in 1883, and the bond upon which this suit is brought was approved by the board of supervisors at their meeting in January, 1884. In July, 1884, Buggies absconded, and it was found that he was a defaulter in the sum of about $24,000. There'are various defenses pleaded by the sureties upon the bond, which we will proceed to consider.' Some of them may properly be disposed of in a very brief manner.
The defendant E. Evans pleaded that he did not sign the bond, and that, as to him, it was a forgery. The court found against him upon this issue. It is sufficient to say that the finding of the court is amply sustained by the evidence.
II. It is claimed that the sureties are not liable, because there was a deficiency in the office of some seven or eight thousand dollars when the bond sued on was approved, and said shortage was not afterwards made good. It is claimed that the sureties are not, in any event, liable for the amount of the defalcation up to the time of the approval of the bond, upon the well established principle that sureties on official bonds are not liable for prior delinquencies of their principal. In our opinion, the court was warranted in finding from the evidence that at the semi-annual settlement, made in June, 1884, there was no delinquency, but that the full amount of money with which the treasury was properly chargeable was in the treasury, in cash. It is true, counsel
It will be seen from the foregoing statements of facts that when the bond was.presented to the board for approval it was complete in every respect, and in the usual and proper form, with the single exception that the name of Minchen
The case of Dair v. U. S., 16 Wall., 1, is precisely in point. The defense of.the sureties was the same in that case as in this. The bond was a blank. The name of the surety to be procured as a condition was no't in the bond when the sureties signed their names. It was held that the defendants were liable, and the cause is distinguished from Pawling v. U. S., 4 Cranch, 219, in which the additional sureties to be procured were named on the face of the bond. In Dair’s Case one Cloud was to be procured as a co-surety. The court say: “If the name of Joseph Cloud appeared as a co-surety on the face of this bond, the estoppel would not apply, for the reason that the incompleteness of the instrument would have been brought to the notice of the agent of the government, who would have been put on inquiry to ascertain why Cloud did not execute it, and the
The case of Brown v. Perkins, Probate Judge, 42 Mich., 501; S. C., 4 N. W. Rep., 195, was a suit on a guardian’s bond. The bond was drawn up on a printed form, and filled in with all but the names of the obligors. It purported to be drawn to bind the guardian as principal, and the word “sureties” was partly printed and partly written, with a blank for their names not filled in. Brown, the surety, signed the bond, while no name was inserted as surety, and he offered to show that when he had signed it he gave it to the guardian with an agreement that he should procure the signature of one Withey as another surety, and that the bond should not be used without Withey’s signature; that the guardian did not procure Withey’s signature, but took the bond to the judge of probate, who wrote-in Brown’s name, and changed the word “sureties” to “surety,” and made an order of approval. It was held that the surety was liable upon the bond. And see, also, McCormick v. Bay City, 23 Mich., 457; State v. Peck, 53 Me., 284; State v. Pepper, 31 Ind., 76; Millett v. Parker, 2 Metc., (Ky.) 608.
The defendants, among other cases, rely upon Daniels v. Gower, 54 Iowa, 319. That was an action against sureties upon a non-negotiable promissory note, and it was held that when an. instrument of that kind was signed by sureties, and deposited with a stranger to the note, to be delivered upon a certain condition, and was delivered by the depositary to the principal maker, and by him to the payee, in violation of the condition, the delivery was not binding upon the sureties, and the note against them was not enforceable. It is true, it is said in that case that the principle involved in cases arising upon official bonds is very nearly the same. But the question as to the rights of sureties upon official bonds was not before the court, and what is said in the opinion in relation thereto was not essential to the determination of the case.
Our examination of this question, in this case, has convinced us that the rights of parties of official bonds are not just like the rights of parties to purely personal transactions. A board of supervisors should -not be required to compel the attendance of sureties to official'bonds, to ascertain whether their names were affixed with conditions. They do not even have the power to compel such attendance. The time and place for the approval of such bonds are fixed by law. The board ought not to be expected to follow the principal over the county, and seek out and interview the sureties upon the subject of their obligation. It was the duty of the sureties to see that the principal in the bond, who was their agent, and who undertook to procure t,he additional sureties, performed that duty, and, in the event of his failure to do so, withdraw from the bond before its approval. When the bond is in proper form, there is nothing to apprise the board of supervisors of any conditions or limitations upon the obligation of the parties thereto, and sureties ought not to be allowed to wait until a defalcation occurs to make known and avail themselves of private stipulations and conditions between themselves and their principal. We have no doubt that nearly every official bond now in force in this state, including bonds of public officers, executors, administrators and guardians, is as vulnerable to a defense of this kind, real or assumed, as the bond in suit; and if we were to hold that such a defense is available to a surety, it would, in our opinion, tend very greatly to impair the value of official bonds. As is said in Dair v. U. S., supra: “ It is easy to see, if the obligors are at liberty when litigation arises, and loss is likely to fall
The only irregularity upon the face of this bond is that the name of Minchen does not appear in the body of it. There was nothing in this to arouse any suspicion in the minds of the members of the board of supervisors that the board was subject to any conditions whatever.
Our conclusion is that the judgment of the circuit court must be
Affirmed.