95 Ill. 593 | Ill. | 1880
delivered the opinion of the Court:
It is insisted by appellants that the instrument in question is a nullity as to the sureties, they having signed it with the blanks in it which it had, and those blanks being subsequently filled without their consent or knowledge, and the case of The People v. Organ, 27 Ill. 29, is referred to in support of the position. That case does decide, that the filling the blank in a bond with the amount of the penalty, after the sureties had executed it, without their knowledge or consent, rendered it void, as to them. But that decision was made under, and in conformity to, the ancient doctrine of the common law that an authority to execute a sealed instrument for another must be of as high a character as the instrument, and therefore that a parol authority was not adequate to authorize an alteration or addition to a sealed instrument; the decision recognizing as the rule that a paper signed and sealed in blank, even with verbal authority to fill the blank, which is afterwards done, is void as to the parties so signing and sealing, unless they afterwards deliver, or acknowledge, or adopt it. Among the cases there cited in support of the decision was that of United States v. Nelson & Meyers, 2 Brock. 64, decided by Chief Justice Mabshall. That was the case of a paymaster’s official bond. There were blanks there which were filled after signing, and they were identical with those here, to-wit: amount of penalty, names of sureties, date, and name of office. The question was whether authority to fill the blanks should be implied, and that great judge, with much hesitation, held that it should not. But he admitted that express authority would have been sufficient, and asserted that but for the ancient distinction between sealed and unsealed instruments in this regard, implied authority would exist; that Speake v. United States, 9 Cranch, 28, (where an express parol authority had been declared sufficient,)undoubtedly went far towards establishing the sufficiency of implied authority in such cases, and he predicted that the Supreme Court would probably completely abolish the distinction in this particular between sealed and unsealed instruments, and concluded his opinion as follows: “I say with much doubt, and with a strong belief that this judgment will be reversed, that the law on this verdict is, in my opinion, with the defendants.” The prediction, as will be seen, has been verified, though the judgment was not reversed, the case not having been carried any farther.
In Smith v. Crooker, 5 Mass. 538, Chief Justice Pabsons, in the case of the official bond of a town treasurer, laid down the rule in general terms, that a party executing a bond "knowing that there are blanks in it to be filled up by inserting particular names or things, must be considered as agreeing that the blanks may be thus filled after he has executed the bond.” Although that was but the case of the writing in of the name of the surety after he had signed the bond, the rule is laid down generally, and is the one which courts subsequently have declared, and which agrees ivith, as we consider, the now prevailing doctrine.
Butler v. United States, 21 Wall. 272, decided by the Supreme Court of the United States in 1874, was a suit upon an internal revenue collector’s bond in the penalty of $15,000, executed by Emory as principal, and by Butler and others as sureties. Butler pleaded that when he signed and sealed the bond it was a printed form, with names, dates and amount of penalty in blank; that he delivered it to Emory under an express agreement that the latter should fill the blank with a penalty of only $4000, and procure two other sureties in the District of Columbia each worth $5000, otherwise the bond was not to bind Butler, and not to be delivered, but returned to him. That Emory fraudulently filled the bond with a penalty of $15,000, and with two additional sureties, neither of whom resided in said District or was worth $5000, but insolvent. This plea was held bad.
The court say: "Every blank space in the form was open. To all appearances any sum that should be required by the government - might be designated as the penalty, and the names of any persons signing as co-sureties might be inserted in the space left for that purpose. It was easy to have limited this authority by filling the blanks, and the filling of any one was a limitation to that extent. By inserting in the appropriate places the amount of the penalty, or the names of the sureties or their residences, Butler could have taken away from Emory the power to bind him otherwise than as thus specified. This, however, he did not do. Instead,, he relied upon the good faith of Emory, and clothed him with apparent power to fill all the blanks in the paper signed in such appropriate manner as might be necessary to convert it into a bond that would be accepted by the government as security for the performance of his contemplated official duties. It ,is not pretended that the acts of Emory are beyond the scope of his apparent authority. The bond was accepted in the belief that it had been properly executed. There is no claim that the officer who accepted it bad any notice of the private agreement. He acted in good faith, and the question now is, which of two innocent parties shall suffer? The doctrine of Davis’ ease is, that it must be Butler, because he confided in Emory and the government did not. He is, in law and equity, estopped by his acts from claiming, as against the government, the benefit of his private instructions to his agent.”
We have quoted thus at length from the fact that this case so fully covers the ground of the case before us, and enunciates the modern doctrine of courts upon this subject, especially in respect of official bonds, and see Dair v. United States, 6 Wall. 1; Drury v. Foster, 2 id. 24.
Inhabitants of South Berwick v. Huntress, 53 Me. 89 (1865), was an action upon a collector’s official bond. It is a very well considered case and is directly in point, holding “that a party executing a bond knowing that there are blanks in it to be filled up, necessary to make it a perfect instrument, must be considered as agreeing that the blanks may be thus filled^ after he has executed the bond,” and that this rule extends to the filling up of the blank for the penal sum in the bond, remarking upon the penalty being viewed as almost a matter of form, the condition being the essential portion embracing the real obligation.
The same doctrine of implied authority in such case was also asserted in the case of State v. Pepper, 31 Ind. 76, (1869.)
MaCormick v. Bay City, 23 Mich. 457, (1871,) was a suit upon a bond given to secure the official conduct of the comptroller of Bay City. McCormick, one of the sureties, offered to prove, as a defence, that McKinney, the principal, induced him to sign the bond while the names of the sureties and the penalty were in blank, but under an agreement that he was not to use it unless he obtained certain specified sureties, and that he delivered the bond contrary to this agreement. But this was held to be no defence, on the ground that McCormick made McKinney his agent to complete and deliver the instrument, and having authorized his agent by visible authority to fill up and deliver it, and the only limit to his apparent authority being by secret instructions, he was bound by McKinney’s acts.
The court say: “We have, then, a case of a person who has entrusted another with power to fill up and procure signatures to, and deliver an official bond, and taken no steps to prevent an abuse of his agency, and we have, as a consequence, the acceptance of the bond without negligence, and the obtaining by means of it of an important public office, and the control of public funds. We can conceive of no stronger case for the doctrine of estoppel, and we approve the rules recognized in State v. Pepper, 31 Ind. 76, and cases there cited, and in State v. Peck, 53 Me. 284, and Inhabitants of South Berwick v. Huntress, 53 Me. 89.”
In the case of State v. Young et al. 23 Minn. 551, (1877,) in a suit upon the official bond of a county treasurer, the bond had been signed by the sureties with a blank in the place for the penal sum, and by the principal delivered to the county auditor, and afterward the blank was filled by the county auditor by the direction of the board of county commissioners with the sum of $25,000, in the absence of the sureties. The sureties were held liable, the court holding that parol authority is sufficient to authorize the filling of a blank in a sealed instrument, and that such authority may be given in any way by which it might be given in case of an unsealed instrument; that such authority may be implied from circumstances; that there was there an apparent implied authority to the board upon which they had a right to act; that the sureties were estopped from denying the existence of the apparent and presumptive state of facts which they, by their conduct, had authorized the board to believe and act upon; and that the apparent authority with which they clothed the board must be held to be the real authority.
These authorities declare the now prevailing rule upon this subject, and the reasons of the rule. They sufficiently show that the courts have entirely drifted away from the decision in the case of The People v. Organ. Or rather, perhaps it may more properly be said, that the old technical rule of the common law upon which that decision was based has become overborne in operation, in this respect at least, of filling blanks in official bonds, by the application of the doctrine of estoppel in pais, a principle, at least in its present broadness of scope, of modern growth. The first distinctive enunciation in England of the branch of estoppel, known as estoppel by conduct, is said to have been in Pickard v. Sears, 6 Ad. & E. 469, and in this country in Welland Canal Co. v. Hathaway, 8 Wend. 480. See Bigelow on Estoppel, 473, 476.
This court has since departed from that case of The People v. Organ, and placed itself in harmony with the class of authorities which have been cited.
In Bartlett v. Board of Education, 59 Ill. 364, the official bond of the treasurer of a school district had been signed by the sureties with a blank in it for the penalty, and the blank was afterward filled by the principal obligor with the amount of the penalty, in the absence and without the knowledge or consent of the sureties, and the bond was held valid as to them on the ground that it might be inferred from the circumstances that the sureties authorized the filling of the blank.
This decision was based upon a different line of authorities from those in the former case, and in repudiation of the old rule then acted upon; among the authorities on which the last decision was based being the case of Texira v. Evans, referred to in 1 Anstrulher, 228, where Evans, wanting to borrow money, executed his bond with blanks for the name and sum, and sent an agent to raise money on the bond. Texira lent ¿6200 on it, and the agent accordingly filled up the blanks with that sum and Texira’s name, and delivered the bond to him. On non est factum pleaded, Lord Mansfield held it a good deed; that parol authority to fill the blanks was valid.
In Smith v. Board of Supervisors, 59 Ill. 412, the official bond was signed by the sureties and left with the principal obligor and he delivered it to the obligee in violation of a secret understanding between himself and the sureties, not known to the obligee, and the instrument was held binding upon the ground that the possession of the bond so signed clothed the principal with apparent implied unqualified authority to deliver the bond, and therefore the obligee was justified in treating with him as in fact having such unqualified authority; and see Comstock et al. v. Gage, 91 Ill. 328.
The filling up of all the other blanks in the bond in suit, except that for the penalty, was but mere form. It is said the name of the office was not stated, and that so there was an uncertainty what office it was, in respect to which the bond was given. There was none at all. The surrounding circumstances are always admissible to show and explain the meaning of a written instrument. Reading this bond as it was signed, in the light of the surrounding circumstances, there could be no possibility of doubt that the office intended was that of treasurer of the city of- Chicago. The bond itself, too, recited that the office was one “in and for the city of Chicago” to which the “above bounden” had been elected or appointed; and it was to the office of treasurer of that city to which the first “ bounden ” in the bond, to-wit, Gage, had just been elected. The provision of law for the fixing of the amount of the penalty strengthened the inference in this particular case of an implied authority to fill the blank for the penal sum; it not being one to be fixed by agreement of parties as in the case of ordinary bonds. By the law the amount of the penalty was to be determined upon by the common council, to be fixed by them in such amount —not less than $200,000—that they deemed the safety of the interests of the city required. Some of the cases cited remark upon the penalty being in a certain sense almost a matter of form. The condition of the bond is the essential feature of it; it states what the sureties undertake for, and what they are liable for. The penalty but limits the amount of the damages which can be recovered from them for the breach of their undertaking.
Appellees claim that there was notice here on the part of the city of the secret understanding of the sureties, or one of them, that the penalty of the bond was not to be more than $250,000. If such were the fact we would agree with them as to the fatal effect. The disagreement is in regard to what facts will constitute such notice. It is claimed that the notice to Hotchkiss, the city clerk, to Holden, the alderman, and to Clyde, the clerk in the office of the corporation counsel, that the blanks in this bond were filled subsequently to the signing of the bond by the sureties, and in their absence, was notice to the city of such fact, and that that would be sufficient notice to the city of the secret condition upon which the sureties signed the bond.
Waiving the question whether the knowledge by the persons named, of such signing in blank and subsequent filling of the blanks, would be notice of such facts to the common council, who were the body appointed by law to approve and accept the bond, and thus notice to the city, we will assume that it would. But we can not then assent to the view taken, that the knowledge by the city of those facts affected the city with notice of the secret condition upon which the sureties signed the bond.
The position taken is, that any material defect Avhatever apparent upon the face of the bond is sufficient to give notice of the actual facts respecting the condition of the execution of the bond. There were several defects here apparent upon the face of the bond, but no one of them, that Ave can see, should affect the obligee with notice that it was the understanding of the sureties that the penalty of the bond was not to be more than $250,000, or put them, upon inquiry on the subject to ascertain whether it was not to be any larger than that. Surely, the lack of a date in the bond would not do so; nor the absence of the names of the sureties in the body of the bond; nor the omission of the name of the office; and no more so, as we conceive, did the blank in the bond for the penal sum. This could not excite suspicion of there having been a limitation of the amount of the penalty. One could reasonably be led to infer no more from it, than that as by the law the amount of the penalty was to be fixed by the common council, the penal sum had been left blank to be filled in when the common council should have determined what the amount of the penalty should be., Under the decisions, the principal obligor had an apparent implied authority to fill up the blank, and the blank was filled by his direction.
The obligee was justified in assuming, and acting upon the assumption, that Gage really possessed the authority with which he was apparently clothed. Knowledge of the unfilled blank for the penalty was but knowledge of the implied authority to fill it; and consequently could be no ground of suspicion of the lack of authority. The imperfection upon the face of the bond which is to have the effect of the notice contended for, must, as we regard, be of such a character that it points towards, indicates, and excites suspicion of the particular matter of defence alleged against the instrument, and, as an ordinarily prudent man, to put the obligee to make inquiry as to the existence of the very thing which is set up in defeat of the instrument—as in this case, the condition of the limitation of the penalty to $250,000. Every one of the cases cited by appellees’ counsel are cases of this character. All but two of them are of this class, namely: where in the body of the bond several persons are named as co-obligors, and it is signed by only a portion of the persons named in the bond as obligors, and it was set up in defence to the bond by the signers, or a portion of them, that they signed the bond upon the condition and agreement that all or certain named of the obligors mentioned in the bond were to sign it before delivery, and that they had not done so. In such case the bonds purported to be the bonds of those who never executed them, and indicated on their face that they had not been completed according to the original intention, and properly enough the obligees were held to be put upon inquiry whether those who had signed consented to the bonds being delivered without the signatures of the others who were named as coobligors; the defect in the bond indicating on the face of the instrument the very thing which was set up in defeat of the bond.
Of the other two cases thus cited, one was that of the erasure of the signature of one of the sureties to a bond before its approval. The defence was; this alteration of the bond. The alteration was apparent on the.face of the bond.
The other case was that of a collector’s bond being altered after its execution, by reducing the amount of the taxes to be collected, without the knowledge or consent of the sureties. The alteration appeared upon the face of the bond, and was held notice to the parties receiving it.
Thus it will be seen that in every one of these cases the very matter of exception taken to the validity of the bond was indicated upon the face thereof, or the circumstance of incompleteness in the instrument pointed at and indicated on the face of the bond the existence of that particular secret condition or agreement which was set up as attending the signing of the bond, and as defeating it.
This is all that the exhaustive research of the very able counsel for appellees has produced in the way of authority in support of this last position, that a defect in a bond is notice ; and we do not consider that the authorities at all meet the exigency of the present case.
The point in this respect, of notice, is not whether there was knowledge of the existence of these blanks unfilled, but whether there was notice of this seci-et understanding in regard to the amount of the penalty of the bond. It is in reality a question of good faith/—whether these blanks in the bond indicated the existence of the secret understanding as to the amount of the penalty, and should have put the obligee upon inquiry whether the sureties consented to the delivery of a bond with a' larger penalty than $250,000. We do not think such a circumstance as the blanks in the bond was in any way indicative of such a secret understanding, or excited any suspicion of its existence, or put the obligee upon any inquiry as to such an understanding, and we must believe the obligee acted in entire good faith in taking the bond.
The cases cited by appellees’ counsel do not, as we view them, decide anything to. the contrary. There may be found in one or more of them some such general expression as that the instrument when delivered must be perfect on its face, or otherwise the obligee is chargeable with notice of the facts, and can not claim the benefit of this rule of protection; but such general observation must be taken with reference to the facts of the particular case, and as applying to an imperfection of the character there appearing; the defect in the case where the language was used being, as before said, that one whose name ivas in the body of the bond had not signed it.
The bond signed and sealed by the sureties was presented by Gage to the common council as his required official bond. The common council were not to suppose that the sureties had done a mere idle thing, or that they were dealing deceitfully with the council, in tendering this bond for their acceptance, and having in reserve a secret understanding which should nullify the bond. But they had the right to think the sureties meant honestly, and intended that the instrument they had signed should be accepted as, and serve for, the official bond of Gage. And although there were the unfilled blanks in the instrument, they saw that Gage had implied authority to fill them in such appropriate manner as might be necessary to make it such that it would be accepted by the common council as Gage’s official bond as city treasurer, as they were so informed by decisions of the highest courts in the land. Of course then the blanks in the bond were no indication of the want of authority, and could not put the obligee upon inquiry as to its existence.
Another point which is made against the validity of the bond is, that failure to file the bond within fifteen days after the canvass vacated the office therein described, and thereupon all liability under the bond terminated.
The position is, that the provision requiring a bond to be filed by the treasurer elect within fifteen days after the official canvass has been declared is mandatory, and that a failure to file the bond within that time eo instanti, upon the termination of the time, absolutely vacates the office.
It is insisted on the contrary, that the sections of the charter on this subject taken together were intended merely to empower the mayor and council, in their discretion, to declare a vacancy and appoint a successor, or to waive the default as to the mere time of filing bond, and to accept and approve it when afterwards filed ; therefore, a failure to file in time does not, of itself, annul or avoid the right or title to the office, but merely renders it voidable or defeasible. That if the officer files his bond strictly in time, his right and title to the office are indefeasible. If he files it afterwards, and it be accepted and approved, his right and title thereupon become equally indefeasible.
This latter seems a reasonable construction, and is one which we are disposed to adopt. Gage derived his title to the office from the election. The law does not favor forfeitures, and “in enforcing forfeitures courts should never search for that construction of language which must produce a forfeiture, when it will bear another reasonable construction.” Hartford Ins. Co. v. Walsh, 54 Ill. 168.
Suppose the filing of the bond within the fifteen days had been prevented by some inevitable accident, but the very next day after the officer filed his bond, which was accepted and approved,—in reason, why should not that suffice, and the officer have right to the office for the term for which he was elected? The aim of the statute would be fulfilled. The object of the statute was not a change of person to hold the office, but to secure an official bond. That having been given, the person whom the people had elected would seem the more proper person to have the office, than one appointed by the mayor and council.
It is conceded that after the expiration of the fifteen days the mayor and council would have been fully justified in refusing to accept and approve this bond, because of this default; and in appointing Gage’s successor, as in the case of Ross v. The People, 78 Ill. 375. Had they so elected, Gage’s right to the office would have been forfeited, and a person appointed who would give a bond. But (in theory at least) the rights and interests of the public were made equally secure by electing to waive the right of forfeiture and accepting and approving the bond in suit, after the fifteen days.
“ There is a known distinction,” says Lord Mansfield, “ between circumstances which are of the essence of a thing required to be done by an act of Parliament, and clauses merely directory. The precise time, in many cases, is not of the essence.” Rex v. Loxdale, 1 Burr. 447. It seems reasonable that it is only when “the rights of the public, or of third persons, depend upon the exercise of the power or the performance of the duty to which it refers,” that the statute should beheld mandatory, and otherwise but directory. Kane v. Footh, 70 Ill. 590; and see Sedgw. Stat. and Const. Law, 368-74. Here, the essence of the thing to be done,—that upon which the rights of the public depend,—is the giving of the bond, not the precise time when it is done.
There are numerous authorities that a provision of law, that an officer shall give bond within a prescribed time after his election, is directory only. The People v. Holly, 12 Wend. 480; State v. Churchill, 41 Mo. 41; State v. Porter, 7 Ind. 204; and see Kearney v. Andrews, 2 Stock. Ch. 70, Speake v. United States, 9 Cranch, 28. The other clauses in the charter, “he shall be deemed to have refused said office and the same shall be filled by appointment,” or, (if held to apply here) “ the office shall become vacant,” it may be held do not change the rule, as the following authorities show, in the case of words even more explicit than these.
In State v. Toomer, 7 Rich. (Law) 216, the statute required the master in chancery, within three weeks after his election, to tender his bond for approval, and upon its approval, to deposit it with the treasurer and sue out his commission, and that “ upon his neglect or failure to do so within the said time, his office shall be deemed absolutely vacant, and shall be filled by election or appointment, as heretofore provided.”
But the court held that the failure to comply with this requirement was only cause of forfeiture, but not a forfeiture ipso facto. That by a strict compliance with the directions of the statute, the title of the office was protected against forfeiture, “and that if the State sees proper to excuse his delinquency by granting him his commission, the defects of his title are cured, and it is converted into a title de jure, having relation back to the time of his election.”
In Sprowl v. Lawrence, 33 Ala. 674, the statute required the sheriff to file his official bond in the office of the probate judge, before entering upon the duties of his office, and within fifteen days after his election. The statute also expressly declared that if he failed to file his bond within the time prescribed by law, he vacated his office. The court there say: “ By virtue of his election, Duncan was sheriff,so far as his mere right to the office was concerned, before he executed his bond. * * * The election having thus invested him with his title to the office, the statute requiring him to file his bond within fifteen days, and providing that on his failure to do so he (vacates his office,’ operates as a defeasance, and not as a condition precedent,” and concluding as follows: “Our conclusion is, that the failure of a legally elected sheriff to file his bond within the time prescribed, does not, by its unaided force, operate his instantaneous removal from office; and that a bond executed by him more than fifteen days after his election, and before any steps or proceeding on the part of the State to effect his amotion, must be considered as the bond of an (officer ’ within the meaning of section 132 of the code,” that is, of an officer de jure.
It is suggested by appellees’ counsel, that this last case has been overruled by that of State ex rel. v. Tucker, 54 Ala. 205. But upon examination, we understand this to be so only in part, that is, in so far only as the former case seemed to require a judicial ascertainment of the vacancy before the appointment of a successor could be made.
Appellees lay stress upon these particular words in the condition of the bond, “ or until said office shall be otherwise legally vacated.” As the bond was signed by the sureties before the expiration of the fifteen days, it is contended that these words have reference to this very contingency of not filing the bond within fifteen days, and that by such express words of limitation, the sureties were not to be liable upon the bond if it was not filed Avithin the fifteen days. We do not think it can fairly be said that in the use of these words the sureties intended to express the idea that they Avould not be liable upon the bond if it was not filed Avithin the fifteen days; or that any special significance is to be attached to the use of the words.
The condition, in describing the office to which Gage had been elected, proceeds to speak of the length of the term of office, using the words, “to hold said office for the period of tAvo years, and until his successor shall be duly elected and qualified or until said office shall be otherwise legally vacated ” —but reciting what was the legal duration of the office. We think that these Avords referred to something to take place after the delivery and acceptance of the bond. That the meaning of the bond Avas that the sureties guaranteed that during the entire term which Avas fixed by laAV, Gage Avould continue faithfully to discharge the duties of the office to which he had been elected unless, after execution and delivery of the bond, such office should be legally vacated.
On November 20, 1871, the canvass of the votes was made and the common council declared Gage elected, and on the 27th of the same month he took and filed his oath of office. Although he had taken steps towards procuring his proposed bond, and had obtained the names of those who were willing to become his sureties, he failed to perfect it and to file it with the city clerk within the fifteen days, but neither the mayor nor the council either declared the office vacant, or appointed his successor; and when afterwards he did present his perfected bond, they accepted and approved it. Upon the faith of the security of this bond he held and enjoyed the office for the full term of two years, and was intrusted with the public moneys. The apparent implied authority with which the sureties had clothed Gage to make use of and deliver this bond as his official bond, by signing and sealing the same and leaving it with him, was a continuing authority, until some step was taken by the sureties towards its revocation.
Hot a step was taken in that direction.
We do not think the sureties have the right now to set up in defeat of the bond that it was not accepted and approved and filed with the city clerk within the fifteen days prescribed in the charter.
Another question arises upon the ruling of the circuit court in excluding questions put to Gage when on the stand as a witness, as to whether certain balances were in his hands, as treasurer, at specified dates. He was asked whether the balance of $519,508.07, which appeared charged against the city treasurer on December 4,1871, the day of the commencement of his second term, was at that time actually in his hands. The same question was put with reference to December 11, 1871, and January 11, 1872. He was also asked whether or not the balance appearing to be in his hands December 16, 1873, of $507,703.58, was at that time actually loaned out for the benefit of the city of Chicago. The questions were all excluded and exception taken.
Gage was his own successor in office. It was his duty as incoming treasurer to receive the treasury balance from his predecessor. If he entered it in his treasury books after the beginning of his second term as having actually come to his hands from his predecessor, and continued afterward from time to time to return and report the same as in his hands, both he and his sureties, we think, should now be concluded from denying that this balance did actually come into Gage’s hands as treasurer. The law transferred any balance on hand to his second term.
The treasurer’s monthly accounts or statements were in evidence, embracing the month of April, 1872, and continuing to the month of November, 1873, inclusive. These were each sworn statements, and they each commence with a statement of “balance in treasury” at the close of the next preceding month, and end with a statement of the “balance in treasury” at the close of the month covered by the account or return.
Gage’s annual reports for the fiscal years ending March 31, 1872 and 1873, were also in evidence. He states in them he “submits here his annual report, with all receipts and expenditures during the fiscal years ending March 31, 1872 and 1873, respectively, and the amount in the treasury” at these respective dates. The entries in Gage’s official books, in evidence, showing the same as the above, were all official en-' tries, expressly enjoined by statute, the charter directing the city treasurer to keep books and accounts.
The same is true of the treasurer’s monthly accounts and statements to the comptroller, and of his annual reports to the common council. He shall render a monthly statement or account to the comptroller, “showing the state of the treasury at the date of such account, and the balance of money in the treasury.” He shall annually report to the common council “ a full and detailed account of all receipts and expenditures during the preceding fiscal year, and the state of'the treasury.” These are the positive requirements of statute. The comptroller is chief of the treasury department, which has control of the fiscal concerns of the corporation. By the charter these books and accounts are to be always subject to the inspection of the comptroller and the finance committee of the common council; to the comptroller, as chief, the treasurer must make a monthly settlement of his treasury balance, based upon a stated account under oath, showing such balance, accompanied with warrants paid, and all other vouchers held by him, and which shall be delivered over to the comptroller and filed with his said account in the comptroller’s office upon every day of such settlement. The charter required the treasurer to verify both his monthly accounts and annual reports by his oath, in writing, declaring that such statement, so far as he knows or has reason to believe, is a fair, accurate and full statement of the matters to Avhich it relates, and of all moneys in his hands, etc.
In the discharge of the various duties Avhich are required to be performed by the comptroller in relation to the financial affairs of the city, he necessarily acts upon the treasurer’s books and monthly statements or accounts, together Avith the vouchers returned therewith, and the annual reports. He has no other data upon which to proceed, and he has a right to rely upon these.
Upon them and the doings of the compil'dler based thereon, the common council and the public at large implicitly rely as at all times affording a correct exhibit of the true treasury balance, which, in contemplation of law, is in the hands of the treasurer. They are the foundation upon which the fiscal concerns and financial policy of the municipal government are based.
These are the official books, statements, accounts and reports, kept and made as thus required, by and upon which appear and are shoAvn the treasury balances which it is sought to falsify.
These balances were brought forward from. Gage’s first term, and stated and repeatedly restated in his said reports and monthly accounts made and rendered during his second term as being actually in his hands, down to the time when he was required to turn over the treasury balance to his successor in office. His official books carried forward to the close of his second term on the basis of the treasury balances, which, from month to month and from year to year during this term, he stated to the comptroller and common council, show the balance claimed in this suit to have been in his hands at the time he was required to pay over to his successor in office.
The correct keeping and making of such books, accounts, etc., was one of the duties of the office expressly enjoined by law, and which the sureties undertook the treasurer should perform, one of the conditions of the bond being that Gage “shall well and faithfully perform the duties of said office as prescribed and required by law.”
The treasury balances appearing were shown and exhibited in and about the actual performance of an express duty of the office. They were of the res gestee themselves.
To allow now, Gage or his sureties, in avoidance of the liability on their bond for these treasury balances, to falsify them, and show that these balances, so stated and reported as being in the treasury, were not at the time actually in the treasury, would be inadmissible, as we conceive, upon sound legal principle.
As respects Gage himself, it would seem to be quite clear that these statements of his of the treasury balances in his hands should be conclusive upon him.
It is a familiar principle that a public officer making a return of his doings upon a writ shall not be allowed to gainsay the truth of it. Barrett v. Copeland, 18 Vt. 67; Hoyne v. Small, 22 Me. 14; Sheldon v. Payne, 3 Seld. 453.
The principle upon this subject is laid down in Cave v. Mills, 7 Hurls. & Norm. 913.
That was a suit by a surveyor to the trustees of certain turnpike roads against the trustees to recover certain sums expended by him in the improvement of the roads. He had rendered to the trustees accounts of his receipts and expenditures for the years 1856, 1857, 1858, showing certain balances due to himself.
The suit was for sums knowingly omitted in the accounts for those years, and it was held that the plaintiff was estopped from recovering them.
One principle of law invoked by the defendants was, that the plaintiff having made a statement false of his own knowledge, upon which the defendants had acted, was bound by such statement. Wilde, B., who delivered the opinion of the court, after discussing this and another proposition, continues as follows : “ We are of opinion that both these principles apply to the present case. Indeed they are but variations of one and the same broad principle, that a man shall not be allowed to blow hot and cold—to affirm at one time and deny at another—making a claim on those whom he has deluded to their disadvantage, and founding that claim on the very matters of the delusion. Such a principle has its basis in common sense and common justice, and whether it is called 1 estoppel/ or by any other name, it is one which courts of law have in modern times most usefully adopted.”
And we are of opinion that the sureties should be equally concluded here with Gage himself.
Commissioners v. Mayrant, 2 Brevard, 228, was a suit on a sheriff's official bond. During his term of office the sheriff wrongfully endorsed a levy of a sum of money upon an execution in his hands and returned the execution with the levy thereon, and failed to pay over the money. The sureties on the bond were held to be responsible for the amount returned as levied by the sheriff, although the same was not in fact levied. It was said the sheriff's return was an official act which bound him officially and made his sureties liable.
In McCabe v. Raney, 32 Ind. 309, a suit against principal and sureties, joint makers of a promissory note, the principal having, by his statements to the purchaser of the note that there was no defence to it, precluded himself from setting up a defence to the note, his sureties were held also precluded, the court saying: “Any act of the principal which estops him from setting up a defence, personal to himself, operates equally against his sureties.”
In Stovall v. Banks, 10 Wall. 583, the Supreme Court of the United States, in holding that sureties in an administration bond are bound by a decree against their administrator finding assets in his hands to the same extent to which the administrator himself is bound, say: “ Certainly the administrator was concluded. And the sureties in the bond are bound to the full extent to which their principal is bound. * * * There may be special defences for a surety arising out of circumstances not existing in this case, but in their absence, whatever concludes his principal as an obligor concludes him.”
In Baker v. Preston, 1 Gilmer (Va.) 235, an action upon a State treasurer’s official bond, it was decided that the books kept by the treasurer were conclusive evidence of the balance actually in the treasury at any given time, both against the treasurer and his sureties, without being pleaded as an estoppel, so as to charge them with balances carried forward from year to year as if those balances were actually on hand.
In The United States v. Girault et al. 11 How. 27, a suit on the official bond of a receiver of public moneys, the breach assigned was, that on the 2d day of June, 1840, Girault, as such receiver, had received a large amount of public money, to-wit: the sum of $8952.37, which he had refused to pay to the United States.
To this breach the sureties pleaded: That on the 2d of June, 1840, and on divers days before that day, the said Girault gave receipts as receiver for moneys paid on the entry of certain lands therein specified, and returned the same to the treasury department to the amount of $10,000, and of which the amount in the declaration mentioned was part and parcel. And that neither the $10,000, nor any part thereof, was paid to or received by him, the said Girault.
The plea was held bad on general demurrer. The court say: “The condition of the bond is, that Girault shall faithfully execute and discharge the duties of his office as a receiver of the public moneys. The defendants have bound themselves for the fulfilment of these duties; and are, of course, responsible for the very fraud committed upon the government by that officer, which is sought to be set up here in bar of the action on the bond.
“As Girault w,ould not be allowed to set up his own fraud for the purpose of disproving the evidence of his indebtedness, we do not see but that, upon the same principle, they should be estopped from setting it up as committed by one for whose fidelity they have become responsible.” And see Morley v. The Town of Metamora, 78 Ill. 394; Evans v. Keeland, 9 Ala. 42.
The official books, monthly statements or accounts and annual reports kept, made and rendered by Gage, during his second term, abundantly show a liability to the amount of the recovery in this case; and holding them to be of the conclusive character which we do, against both Gage and his sureties, it is needless to consider whether the books of Gage for the first term, showing a balance in his hands at the close of his first term, were properly received in evidence, or whether proof that the balance thus appearing was not at that time actually in Gage’s hands, was improperly excluded. If there was error in such respects, it would be a harmless one, as such proof of any balance at that time was entirely superfluous and unimportant, in view of the other plenary evidence which there is in the ease of the amount of the defendant’s liability.
The question as to the balance shown by the record in Gage’s hands December 16, 1873, being loaned out for the benefit of the city, is liable to the further objection that its tendency, if answered affirmatively, would be to prove a breach of the bond in that respect. Under the charter the treasurer was required “to keep safely without loaning or using ” the city money, and was permitted to deposit it at interest only by the authority of the common council manifested by ordinance or resolution, and in the manner prescribed by the charter. There is no pretence that such authority was ever given; on the contrary, there is evidence tending to show it was not given.
We find no material error in the ruling of the circuit court upon the admission or exclusion of evidence.
The judgment of the Appellate Court is reversed and the cause remanded, with directions to enter a judgment of affirmance of the judgment of the circuit court.
Judgment reversed.
Dickey, J., took no part in the decision, having been of counsel in the case in the circuit court.