Conner v. West, Receiver for Brickhouse Banking Co.

129 Va. 85 | Va. | 1921

Sims, J.,

after making the foregoing statement, delivered the following opinion of the court:

The questions presented by the assignments of error, which are involved in the decision of the case will be passed upon in their order as stated below.

[1] 1. Was the bond of the sureties for the cashier limited as to the duration of its obligation to any particular year or other period of the service of the cashier; or did it cover a continuing liability during the whole, term of service of the cashier from the time when the bond was given until the end of such service May 29, 1917?

The first portion of this question must be answered in the negative; the latter portion in the affirmative.

We have no hesitancy in saying that, from the face of the bond itself, this is the proper construction of it.

In view of our construction of the bond, it is immaterial that the cashier was employed by the year, or whether he was an officer or merely an employee of the bank. In any case the length of time he might continue in the service of the bank was dependent fipon the will of the board of directors of the bank as evidenced by their entering for the bank into contract or contracts with the cashier for his service. And there is nothing in the terms of the bond which liimits the duration of its obligation to the period of any particular contract of service of the cashier. Certainly it is not limited to a period of one year; nor, to a period of two years; nor, as we think, to any period short of the cessation of the service of the cashier. Plainly the bond was given and accepted as a continuing obligation to cover the whole period during which the cashier might remain continuously in the service of the bank.

[2] We are strengthened in opinion that this view is correct by the fact that the evidence shows that such was the co-temporaneous mutual construction of the bond by both the bank and the sureties, up until the end of the services of the cashier and the appointment of the receiver. The bank unquestionably relied all along on the bond as a continuing obligation. And the fact that the bank was relying upon this bond as a continuing obligation of surety-ship for the faithful discharge of his duties by the cashier, was undoubtedly brought to the attention of all three of the sureties by the president of the bank in the latter part of the year 1916 by his interview with them at that time, the manifest object of which was to ascertain the status of the bond as a continuing obligation, and they all three acknowledged in substance the existence of their obligation under the bond “as Turner’s sureties;” and not until after this suit was instituted ever raised any question as to its being a continuing obligation.

See Elam v. Bank, 86 Va. 92, 9 S. E. 498, for the holding that the cashier’s bond there involved was a continuing obligation covering successive years of service, to which the cashier was annually re-elected from year to year— the statute law referred to in that case being similar to Code 1887, sec. 1120, 1157, Acts 1902-3-4, p. 906, in existence during the period covered by the bond in the instant case.

The cases of U. S. v. Wright, Fed. Cas. No. 16, 775, 1 McLean 509; Gilbert v. Luce, 11 Barb. (N. Y.) 91; Atkins v. Bailey, 9 Yerg. 111 (Tenn.) are urged in argument for the sureties as sustaining the position that the mere resignation of an officer, regardless of whether the resignation is accepted or not, terminates the term of office. But these cases all involve offices created by law, and not those created merely by contract; and they also involve unconditional resignations. There is a conflict of authority, however, as to how long the liability continues of a surety of an officer holding an office created by law; the conclusions reached in the several jurisdictions depending in large measure upon the existing statutes affecting the subject. 27 Am. & Eng. Ency’l Law (2 Ed.) p. 535; Coplin v. McCalley, 1 Leigh (28 Va.) 280, 19 Am. Dec. 748. And, it is elementary that a public office, created by law, differs in important particulars from an employment, although the latter be a public employment. As said by Chief Justice Marshall in U. S. v. Maurice, Fed Cas. No. 15, 747, 2 Brock. (U. S. C. C.) 96: “ * * * * * although an office is an employment, it does not follow that every employment is an office. A man may certainly be employed under a contract, express or implied, to perform a service without becoming an officer.” But, in view of our conclusion above stated, that the proper construction of the bond in the instant case is that it is a continuing obligation, covering the whole time of the continuous service of the cashier, without regard to how that service may have been divided up into successive contract periods of service, it would be wholly unprofitable for us to enter here upon the various distinctions and considerations which might-affect the correctness of our conclusion if this were the case of suretyship for a statutory officer having ia term of office fixed by law. Such a case is not here before us.

[3] For the same reason it is unnecessary for us to consider the various questions, and the authorities cited thereon, raised by the assignments of error and argument of counsel, touching the admissibility or non-admissibility of oral evidence to show that the cashier’s resignation was tendered and accepted, notwithstanding that no record thereof appears in the minutes of the board of directors. Even if such evidence was admissible in this case, because minutés of all the proceedings of the board were not required to be kept in writing (Goodwin v. U. S., etc., Life Ins. Co., 24 Conn., 591), or for some other reason (Jones on Ev. sec. 203-4; 7 Am. & Eng. Cas. pp. 1045-6), and if the trial court was in error in refusing to admit such evidence in behalf of the sureties, it was obviously harmless error, in view of the above conclusion with respect to the proper construction of the terms of the bond. If the resignation was tendered and accepted, or the preceding contract of employment of the cashier was otherwise terminated in May, 1914, it is undisputed that another contract of employment, either express or implied, was, eo instcmti, made between the bank and the cashier, in such a way that his services as cashier were not for a moment interrupted, but were continuous, as aforesaid,' from the time the bond was given until the liability in judgment was incurred; and since the bond was, as aforesaid, not limited in its obligation to any particular period of the employment of the cashier short of the cessation of his service as such but covered a continuous liability during the whole term of actual service of the cashier aforesaid, the evidence in question was immaterial.

[4] The sole question remaining for our decision is the following:

2. Did the release by the receiver, without the consent of the sureties, of the mere personal liability to the bank of R. B. Upshur and his partner, composing the firm of R. B. Upshur & Company, for the overdraft of $1,329.31 for which the cashier was also liable to the bank, release the sureties of the cashier from such liability?

This question must be answered in the negative.

[5, 6] There are two rules which are well settled: (1) That a release of the principal debtor by the creditor, by an absolute release of the debt, or by an obligatory extension of the time of payment, without the consent of the surety, releases the surety in toto; and (2) that a release by the creditor, without the consent of the surety, of any perfected lien or fund or property held by the creditor in such a way that he has the legal right to apply it in satisfaction of the whole or any part of the debt, release the surety pro tanto, i. e., to the extent of the amount which could with certainty, as appeared at the time of the release, have been realized from the security. 32 Cyc. 225; Sheldon on Subrogation, sec. 119, p. 174; Shannon v. McMullen, 25 Gratt. (65 Va.) 212; Morton v. Dillon, 90 Va. 595; 19 S. E. 654; Chichester v. Mason, 7 Leigh (34 Va.) 244; 27 Am. & Eng. Enc’l Law (2nd Ed.) H. 516, 518-520; Henderson v. Huey, 45 Ala. 276; Maquoketa v. Willey, 35 Iowa 323; Bedwell v. Gephart, 67 Iowa 44, 24 N. W. 585.

[7] It is urged in argument for the sureties, that, by reason of the doctrine of subrogation, if the sureties are required to pay the Upshur & Co. debt, they are entitled to be subrogated to the benefit of the rights at one time held by the bank against the individual partners of Upshur & Co. and any property they may accumulate in future, in order to re-emburse themselves; and that the release by the receiver of these rights defeated the sureties of their right of such subrogation and hence released them from liability to pay such obligation; and the following.authorities are cited in support-of that proposition, namely: Daniel’s Ex’r. v. Wharton, 90 Va. 584; 19 S. E. 170; Gurnee v. Bausemer & Co., 80 Va. 867; Renick v. Ludington, 14 W. Va. 367; Edgerly v. Emerson, 23 N. H. 555; 55 Am. Dec. 207; Knighton v. Curry, 62 Ala. 404. But none of these authorities goes in its holding beyond the two rules above mentioned. None of these hold that the right of subrogation ill such case extends to mere personal collateral obligations. Such was the character of the obligation of Upshur & Co. to the bank. The bank never reduced that obligation to judgment so as to acquire any lien upon property.

There are general expressions in the opinion of the court in the case of Renick v. Ludington, supra (14 W. Va. 367), which might seem to give color to the contention that the release by the creditor of a collateral personal obligation will release the surety pro tanto; but an examination of that case discloses that in truth the rule applied therein is nothing more than the first rule above mentioned. Such rule is there applied to the dealings of a creditor with sureties, but the circumstances were such that the surety, whose obligation was compromised and partially released by the creditor, occupied, as between himself and the other sureties, the relationship of principal debtor to the creditor, and the other sureties the relationship of sureties for such debtor.

The authorities hold that the release by the creditor of a collateral mere personal obligation, even of the principal debtor, and a fortiori of such an obligation of some third person, without the consent of the surety, does not release the surety, even pro tanto. Glassier v. Douglass, 32 Conn. 393; Perrine v. Fireman’s Ins. Co., 32 Ala. 575; 27 Am. & Eng. Enc’l Law (2nd ed.) pp. 516, 518-520.

[8] Concerning what character of collateral securities in the hands of a creditor cannot be released, without the consent of the surety, without releasing the surety from his obligation pro tanto, the court, in Glassier v. Douglass, supra (32 Conn. 393), says this: “The better opinion is that it must be a mortgage, pledge or lien — some right to or interest in property which the creditor can hold in trust for the surety and to which the surety if he pay the debt, can be subrogated, and the right to apply or hold must be absolute.” Speaking of the situation where the creditor has no lien but only the personal obligation of the principal debtor (in that case the promissory note of the principal debtor), the court further says: “* * * the creditor is ‘under no obligation to active diligence’ and therefore need not commence a suit whatever his opportunity, so if he commence one he is under no obligation to pursue it, for it involves trouble and expense not required of him * *

The case will be affirmed.

Affirmed.

Case Details

Case Name: Conner v. West, Receiver for Brickhouse Banking Co.

Court Name: Supreme Court of Virginia

Date Published: Jan 20, 1921

Citation: 129 Va. 85

Court Abbreviation: Va.