107 P. 81 | Mont. | 1910
delivered the opinion of the court.
The plaintiff brought this action to recover on the official bond of the defendant William E. Davies, given as clerk of the district court of Silver Bow county, certain sums of money alleged to have been lost to the plaintiff through the wrongful acts of one W. P. Farrell while acting as Davies’ chief deputy. The defendant corporation is his surety. Davies was elected to the office in 1904 for the term of four years, beginning January 2, 1905, and entered upon the discharge of his duties upon that date, having qualified and filed his official bond as required by law. He continued in office during the term. Farrell served as his chief deputy during the year 1905, and a portion of the year 1906. The wrongful acts by which the plaintiff suffered
It is admitted in the answer that Farrell did issue fraudulent and fictitious certificates which purported on their face to be juror and witness certificates, to the amount alleged in the complaint. It is averred, however, that they were of no apparent validity, because they were not issued under the seal of the court as required by law, and that, in issuing them, Farrell acted as an individual, and not as deputy clerk. It is also
After hearing the evidence introduced by plaintiff, the defendants having declined to introduce any, the court directed the jury to return a verdict for plaintiff. The appeal is from the judgment upon the judgment-roll alone. The questions submitted for decision are: (1) Does the complaint state a cause of action? And (2) In view of the admissions in the reply, did the court err in entering judgment for plaintiff?
1. It is argued that the complaint is insufficient, in that it gives no information as to the character of the certificates or what they recited, or how they were signed, or to whom they were addressed. It is alleged that the defendant Davies was duly elected to the office of clerk, and that, having qualified, he entered upon the discharge of his duties as such and was occupying the office during the time mentioned; that Farrell was his chief deputy; that as such deputy during the time mentioned he issued the fraudulent and fictitious certificates; and that they were thereafter presented to the treasurer of Silver Bow county for payment, and were paid out of the funds of the county. Under the Code, it is the rule that the allegations of a pleading are to be liberally construed, with a view to substantial justice between the parties. (Revised Codes, see. 6566.) “Under favor of this rule, whatever is necessarily implied in, or is reasonably to be inferred from, an allegation is to be taken as directly
2. When the fraudulent conduct of Farrell was discovered and brought to the attention of the authorities of Silver Bow county, the county attorney charged him by information withi the forgery of two of the jurors’ certificates involved herein, and he was convicted and sentenced to terms of imprisonment. Upon application to this court for habeas corpus, it appeared from the copies of the certificates set forth in the informations that in issuing the originals Farrell omitted to impress upon them the seal of the court. This court held that such an instrument has no apparent legal validity, and therefore that the false and fraudulent making of it does not constitute forgery. Accordingly, it was held that the convictions were improper, and! that the complainant was entitled to be released from custody. (In re Farrell, 36 Mont. 254, 92 Pac. 785.) It was pointed out
The liability of defendants in this case is not, in our opinion, to be determined by the fact that in manufacturing and issuing the certificates Farrell was not technically guilty of the crime ■of forgery. Their liability turns upon an answer to the question: Did the issuance of the certificates, in the form in which they were issued and under color of office, operate as an effective cause of loss to the county? Under the statute, the condition ■of every official bond must be that the principal shall faithfully perform the official duties required of him by law as it exists at the time he enters upon his office, as well as those imposed by law subsequently enacted, and that he will account for and pay
Counsel for defendants contend that since the certificates were adjudged in the Farrell Case to be invalid, and for this reason that the treasurer could not lawfully pay them, the loss to the county was caused by his wrongful act, and hence that Davies and Ms surety may not be held responsible. The attorney general contends that the issuance of certificates to jurors and witnesses was one of the duties of the clerk; that it was his duty to see that they were issued only to persons entitled to them, and in the form prescribed; and that he and his surety are liable for the misconduct of Farrell, the deputy, in issuing them as he did, even though they were not in proper form and were paid by the treasurer. With this latter contention we agree. It was said by the supreme court of Mississippi in Lewis v. State, 65 Miss. 468, 4 South. 429: “It was among the powers and duties of Bracey as circuit clerk to issue, under certain conditions, certificates to witnesses, to be paid by the county; and if, in exercising this power or performing this duty, he acted wrongfully or violated his duty in any respect, so that the county, whose agent and servant he was in the matter, was thereby de
If Davies himself had issued the certificates, it could not be doubted that he would have done so in his official capacity; for he would not have so acted except for the purpose of obtaining money from the county treasurer. Farrell was able to issue them only by virtue of the fact that his connection with the office as deputy furnished the opportunity. He issued them for the purpose of misappropriating the funds of the county. Under the provision of the statute supra, this was misconduel in office, for which his principal is liable. The contract between the county and the surety imposes no obligation upon the county to stand as guarantor for .the good conduct of its officers. The surety of a delinquent officer may not, therefore, be heard to say that the county is estopped to assert his liability because of the misconduct or shortcomings of other officers, or because their misconduct in any way contributed directly to the loss, the cause of which was set in motion by the delinquent. (Jackson County v. Derrick, 117 Ala. 348, 23 South. 193; County of Waseca v. Sheehan et al., 42 Minn. 57, 43 N. W. 690, 5 L. R. A. 785; Campbell v. People, 154 Ill. 595, 39 N. E. 578; Spindler
But counsel for the defendants argue that in going forward in the line of causation from the misuse of his official position by Farrell until the loss is reached, the first efficient proximate cause encountered is the unauthorized payment of the certificates by the treasurer, and hence that the treasurer alone, and
When we look for the direct and proximate cause of the loss suffered by plaintiff, no just conclusion can be reached other than that the deputy’s conduct was, to say the least, one of the proximate causes of the loss, and not a mere condition. To be sure, the treasurer was guilty of gross negligence, without which the loss would not have occurred; but this did not excuse the clerk. If the certificates had been under seal and fair on the face, but forged by the clerk himself or one of his deputies there could be no question as to the liability of the clerk, and his surety. Are they any less liable because the deputy adopted a different expedient, as he did in this case, and thus avoided criminal liability? The negligence of the treasurer and the-misconduct of Farrell operated as concurrent causes. The principle applicable is that, where two causes operate concurrently to
If the certificates had been under seal, they would all have been forgeries, within the rule declared in the case of In re Terrett, 34 Mont. 325, 86 Pac. 266; but the fact that they were not forgeries does not destroy the legal significance of the fact that Farrell intended hy the use of his official position to induce the treasurer to pay out the money of the county, either for his own use or for that of someone else—it makes no difference which—and that he did so. The prevalence of the custom and practice mentioned in the pleadings only emphasizes the justice of the conclusion which we have reached. If the method of conducting the business of the county alleged did prevail, it added nothing to the culpability of Farrell in committing the great number of frauds of which he was guilty. The fact of its existence only tends to show the ready opportunity he had to defraud the county by virtue of the trusted position which he held in the office of his principal. The question is put by counsel : How could Davies have protected himself from liability for such frauds? The answer is apparent. Under the statute, he was authorized to indemnify himself by requiring of Farrell an official bond. (Revised Codes, sec. 416.) If he failed , or neglected to do this, neither he nor his surety may complain that they have suffered loss.
Though counsel do not refer to the subject in their briefs, it may be observed that by the admissions in the reply and the allegation of the custom and practice observed by the clerk and treasurer, by way of estoppel, there is presented an issue upon a matter of fact, which modifies and enlarges the cause of action stated in the complaint. Thus there is a distinct departure in the pleadings. (6 Ency. of PL & Pr. 461; Bliss on Code Pleading, sec. 396; Phillips on Code Pleading, see. 273.) The court evidently regarded the complaint as aided by these admissions and allegation, and hence directed a verdict for the plaintiff. By failing to insist upon a reformation of the pleadings in the trial court the defendants waived the departure. (6 Ency. of
The judgment is affirmed.
Affirmed.