235 N.W. 370 | S.D. | 1931
This action was brought to recover on a surety bond given to Davison county by the Western National Bank. The defendants Morris, Vickers, Hill, Scallin, and 'Shuster were the directors of said bank and' also sureties on the bond.
On the 9th day of January, 1924, the bank made a written application to the county commissioners of Davison county to- be appointed a county depository for the stun of $25,000, and in such application stated that it would “give bond as in the past.” On the 10th day of January the commissioners by resolution designated the bank as one of the county depositories. The bank had been
Findings of fact, conclusions of law, and judgment were for defendants, and the county appeals.
As one of the defenses to the action, the defendants contend, and the trial court found, that the bond in question was “merely an offer or proposal to guarantee deposits to be made in the future * * * and that defendants never received any consideration from the county or from any one else for the signing thereof, and that the plaintiff never paid to the defendants or anyone else any consideration whatever therefor; that the said offer to- guarantee was never accepted by the county, plaintiff, nor anyone o-n its behalf, and no notice of acceptance thereof was ever given by the plaintiff or any of its officers to any of said defendants prior to January 31st, 1924; * * * and that the plaintiff and none of its officers ever acted upon said written instrument, and no deposit was ever made in the said Western National Bank, * * * in reliance upon said bond, or at all, from- January 18th, 1924, the date of the execution of said instrument to the date of suspension of said bank.”
This contention is wholly without merit. See Continental Life Ins. Co. v. Barnes (S. D.) 228 N. W. 809. In the first place, this is not a -contract of guaranty. It is a contract of suretyship
It is next contended by defendants that there was no liability on the bond because it had not been approved and accepted by the board of county commissioners before the county money had been deposited in the bank.
The law, section 6888, Rev. Code 1919, as amended by chapter 297, Laws 1923, contemplates that the bond shall ¡be filed, examined by, and approved by the board of county commissioners before the designation as depositary is made, ¡but the approval is no part of the bond, and there is no provision of law to the effect that the sureties are not liable on the bond until it has been examined and approved by the commissioners; or unless it was examined and approved before the deposit was made. The bond goes into- effect, if it has been filed, as soon as the money is deposited, or if it has not been filed ¡before the money has been deposited, then as soon thereafter as it is filed. The approval of the bond is not for the benefit of the sureties, and it is not a matter of concern to them whether it is ever approved; and it comes with ill grace from these defendants, after obtaining some $19,000 of the county’s money to contend that they are not liable on- their bond because the bond had not been approved by the count)' commissioners before they received the money. Neither is it material that the bank had failed before the bond had been approved. In Lyman County v. Whit-
In finding of fact No. 3, the trial court found that in January, 1920, the Western 'National Bank had been designated as a county depository and pursuant thereto had filed: a bond executed by the Interstate Surety .Company, and that such bond “has ever since remained in full force and effect.” We fail to see how this fact is in any wise material or why it was injected into the record.
The contract of suretyship was entered into for the purpose of securing a benefit to the principal and became effective as soon as this benefit, the deposit of the county money in the bank, was received. The benefit had 'been bestowed before the bond was filed. The filing of the bond completed the contract and was binding on the sureties without notice of acceptance. Dennis v. Great Northern Construction Co., 53 S. D. 646, 222 N. W. 269.
State v. Corvallis State Bank, 84 Mont. 297, 276 P. 265, is on all fours with this case. In that case the money of the county was in the bank before the bond was executed', and the bank failed be-. fore the bond was acted upon and approved by the board of county commissioners. The court held the sureties liable. For further authority, see Dickey County v. Gesme, 51 N. D. 272, 199 N. W. 873; Overly Special School District No. 44 v. Haber, 193 Wis. 403, 214 N. W. 342.
Upon the record in this case the plaintiff is entitled to judgment as prayed for in its complaint.
The judgment and order appealed from are reversed.
