Commonwealth v. Tate

89 Ky. 608 | Ky. Ct. App. | 1890

JUDGE BENNETT

delivjsbbd the opinion op the coukt.

Tlie facts relating to the election of James W. Tate to the office of Treasurer of this State, his repeated elections to said office, Ms suspension from office, impeacMnent and removal, are stated in the opinion in the case of James W. Tate. and his sureties on his official bond for the term of 1882 and 1883, this day-rendered. (Commonwealth v. Tate, &c., ante, 587.) This action is against his sureties on his official bonds for the two terms — one for 1886 and 1887, the other for 1888' and 1889 — to recover the amount of said Tate’s defalcations for either or both of said years.

The appellant, in paragraphs one and two, set out a cause of action on each bond, and filed a copy of the same with each paragraph, except the amount of defalcation occurring in each term was left blank. The third paragraph reiterates substantially all the allegations of the first and second paragraphs, together with the additional statement that the amount of defalcation occurring in said two terms was one hundred and sixty-two thousand two hundred and eighty-six dollars and eighty-one cents, and that the appellant could not tell what*part of said defalcation occurred during the term of 1886 and 1887, or what part occurred in the term of 1888, but it did occur during said terms; but the fact as to the amount converted by Tate during each term was peculiarly within his knowledge.

The 26th section of the Civil Code provides: “Persons severally liable upon the same contract, and parties to bills of exchange, to promissory notes placed upon the footing of bills of exchange, or to common orders and checks, and sureties on the same, or separate instruments, may all, or any of them, be in-eluded in the same action at the plaintiff's option."

According to this provision of the Code, it seems that if the plaintiff holds two or more separate obligations, payable to himself, and the same sureties are on each obligation, all, at the option of the plaintiff, may be sued in the same action. But where the principal is the same, and the sureties are, in part, the same to each instrument, there also can be no doubt of the plaintiff’s right to include those that are the same to each instrument in the same action. The Code expressly provides that he may sue any of them at his option. Of course, each obligation should be for the performance of the same class of duties. While it is true that they all may be included in the same action, yet, where there are two or more instruments, although the sureties sued are the same, each instrument should be set out in a .separate paragraph, in order to show the contract by which they became severally bound. Here each bond is set out in a separate paragraph, and the same sureties on each bond are sued. The sureties that are on one bond and not on the other are not sued. The appellant, as said, had a right to include these in the same action. Whatever defalcation occurred during said two terms, all of the sureties sued being the same on both bonds, are equally liable to the appellant for the whole amount, whether all of the defalcation occurred during either term or partly in both; and,' as said, the foundation of the necessity of suing on each covenant is to show how they became bound; but the respective obligations make them severally bound for the entire defalcation that occurred during said two terms, and the appellant has the perfect right to sue and collect this money off of all or any one of them. In suing and collecting its debts off of any one of them, it is not bound to so shape its suit as to preserve or facilitate appellees’ remedies against their unsued co-sureties, or against each other. It is true that it can not do any thing to destroy the appellees’ remedies against their co-sureties; but whatever the law authorizes it to do in the way of forcing the collection of its debt, although the pursuit of the remedy, may cause incidental inconvenience and hardship and consequent loss to the parties sued in reference to their remedies against their unsued co-sureties, or in •reference to each other, it has the perfect right to do, else the law would not have given it such remedy. It is its debt that it is trying to collect by such means as the law gives. That law does not require it to pursue such a course as to preserve an easy remedy against the appellees’ co-sureties. Their remedy against their co-sureties grows out of equities wholly independent of the appellant, and about which it has no concern whatever, except to do nothing that will impair that right, save what may incidentally grow out of the pursuit of its remedies.

Now, the petition shows, on its face, a cause of action against the appellees. The first and second paragraphs are defective only in not stating the amount of defalcation occurring during the term for which the bond was given. They both say that there was a conversion during each term; but the amount is left blank. The third paragraph says that, during ■said two terms, the said amount converted was upwards of one hundred and sixty-two thousand dollars. The appellees are each bound to the appellant for this entire sum, the recovery of which the appellant is alone interested in looking after. As to the equities of the appellees, in reference to contribution among each other, of in reference to contribution from the unsued co-sureties, the appellant is not one whit concerned. Its money is all it wants, and the appellees agreed to pay it. Suppose that the appellant’s petition, by being in three paragraphs, is informal or defective by reason thereof; but, nevertheless, taken all and all, states a cause of action, and it certainly does, should the appellant be turned out of court on demurrer?

Pomeroy on Remedies, &c., section 549, says: “The true doctrine to be gathered from all the cases is, that if. the substantial facts Avhich constitute a cause of action are stated in a complaint or petition, or can be inferred by reasonable intendment from the matters which are set forth, although the allegations of these facts are imperfect, incomplete and defective, such insufficiency pertaining, howeAmr, to the form rather than to the substance, the proper mode of correction is not by demurrer, nor by excluding evidence at the trial, but by a motion before trial to make the averments more definite and certain by amendment.”

Here, as before said, the petition, in the three paragraphs, set forth a cause of action against each one of the appellees for the full amount claimed. The first and second paragraphs were proper, as showing the respectiAre obligations by which the appellees each became liable for the entire sum, and they are only liable for the entire snm by virtue of their being on each bond, otherwise the parties to each bond would only be liable for the defalcation that occurred during the term that such bond covered. Then, an the appellees were severally liable on each bond for the entire defalcation that occurred during the two terms, and as that liability required two paragraphs to set it forth, the only error consisted in the fact of having the third paragraph. Said paragraph should have been simply an addendum or continuation of the first and second paragraphs, and explaining why the respective amounts of Tate’s conversion or defalcation in each was left blank. But it is said that the Code only authorizes a party to allege alternatively the existence of one or another fact in case either constitutes the same cause of action. If we concede this interpretation of the Code to be correct, then the appellees are confronted with the fact that, while there are two causes of action, each appellee is' liable for the whole sum claimed. If the entire defalcation, if any, had occurred in either term, the appellees would have been liable for it; but the defalcation was scattered over two terms, and appellees equally are liable for it. In either case, as aforesaid, it constitutes but one liability. As to the question of contribution, the appellees will have to look out for themselves. The appellant is, under the law, entitled to coerce the whole amount of the debt out of any one or all of them, and it is not bound to so shape its pleading, or to so shape .its allegations, as to make the appellees’ right to contribution easy, or appear, as to the amount, of record.

Upon the return of the cause, the appellant should be allowed to amend its petition in conformity with the foregoing views.

The judgment is reversed, with directions for further proceedings consistent with this opinion.