Dover v. Twombly

| N.H. | Dec 15, 1860

Bellows, J.

This is an action of debt upon a bond against the principal, the said Twombly, and his sureties, given on the 13th day of July, 1857.

The first plea is the general issue; the second sets forth the condition of the bond which recites the appointment of the said Twombly as agent for the city of Dover, for the purchase and sale of spirituous and intoxicating liquors, &c., and binds him well and faithfully to perform all the duties of his said office, and in all respects to conform to such rules and regulations as the mayor and aldermen should prescribe, and to comply with the requirements of an act for the suppression of intemperance, passed June, 1855; and the plea then alleges a general performance, according to the form and effect of the bond.

To this plea there are eight replications; all alleging that said Twombly, on the 13th day of July, 1857, accepted said agency, and entered into the service of the plaintiffs as such agent, and so continued until February .18, 1859 ; and all, but the last two, containing the further allegation that the said Twombly did not comply with the requirements of said act, and then proceeding to point out in what respects.

To all these replications the plaintiffs demurred specially, and for causes of demurrer to every replication they assign the following: (1) That the plaintiffs undertake to charge the defendants for matters which took place, if ever, after the period or term for which said Twombly was appointed agent as aforesaid, viz., after April, 1858, and after the term for which the bond was given ; (2) It is not alleged that there was any breach of the condition of the bond during the time for which said Twombly was appointed agent, &c., and for which the bond was given.

Upon a careful examination of the several replications, we think that the causes of demurrer above set forth apply to all of them alike ; it being assumed by the pleader that the whole period, between July 13, 1857, and February 18, 1859, is to be regarded as the duration of his office, under the appointment of July 13, 1857, or else that subsequent appointments give it the same effect.

In regard to the second replication, we were at first inclined to hesitate, thinking it might be capable of a construction that would amount to an allegation that no report of purchases and sales was ever made to the mayor and aldermen ; but, upon a more careful examination, we think the term, “ all his purchases and sales,” must apply to all made during the whole time specified, and can not, consistently with the rules of pleading, be regarded as an allegation that he made no such report during the first year of his appointment.

The question then is, whether the whole period, between July 13, 1857, and February 18, 1859, is to be regarded as one and the same, and as covered by the bond. Upon an attentive examination of the statute, and the adjudged cases bearing upon the question, we have arrived at the . conclusion that it is not so to be regarded. By the act of June, 1855, ch. 1658, sec. 7, it is pi’ovided that the mayor and aldermen of any city, or the selectmen of any town or place, within thirty days after this act shall take effect, and in the month of April annually thereafter, and whenever a vacancy may occur, shall appoint one or more suitable persons, &o., to be agents, &e., for the purchase and sale of spirituous and intoxicating liquors, &c.; and, after stating for what purposes sales may be made, and conferring the power of removal, the same section provides that every “ agent so appointed shall hold his office for one year, or until another is appointed, unless sooner removed.” These provisions, as to the term of office, correspond substantially with those in regard to town officers generally, except so far as varied by the mode and time of appointment, and we are of the opinion that the office of such agent-must be regarded, like the other town officers, as annual in its character. And this is a matter, being a public statute, of which courts will take judicial notice without its being alleged in pleading. 1 Chit. PI. 215. So it is directly held in Leadley v. Evans, 2 Bing. 32; Peppin v. Cooper, 2 B. & A. 431.

In the case of an annual officer, it is well settled, by adjudged cases in England and the United States, that the sureties upon the official bond are not held for defaults committed after a reelection. Even where the terms of the condition were broad enough to reach all acts of the" officer thereafter committed in that office, and though no limitation of time is stated, yet it is held that the language should be explicit to justify a construction that should give an indefinite extension to the surety’s liability, and at the same time give him no power, by notice or otherwise, to terminate it. Where the office is annual, it is to be presumed that the surety contracts for the faithfulness of the officer only during the time for which he is thus appointed ; and, if he be retained in the office for a longer period, we think he may safely assume that it is upon the strength of a new bond.

In the case of Lord Arlington v. Merricke, 2 Saund. 411, the bond recited the appointment of a deputy postmaster for the term of six months following, but bound him to execute its duties faithfully all the time he should continue deputy postmaster at that stage. It was held that the responsibility of the surety existed only for the six months. So it is said by Sergeant Williams, in a note to the last case, that, if a bond be conditioned for the due collection by the officer of taxes, rates or the like, at all times thereafter, yet, if the office is an annual one, a due collection for one year is a compliance with the condition ; and to this are cited a number of cases in 2 Saund. 415. In Liverpool Waterworks v. Atkinson, 6 East 507, the bond recited an agreement by the principal to collect the plaintiff’s rents, from time to' time, for twelve months; and the condition was, “ that if he should, from time to time, and at all times thereafter, during the continuance of such his employment,” use all diligence, &c., and, also, if “ so long as he should continue to he employed by the company, from time to time, he should perform the orders,” &c. It was held the obligation under the bond extended only to the twelve months.

In Wardens of St. Saviour’s, Southwark, v. Bostock, 5 B. & P. (N. R.) 175, the bond recited the appointment of the principal to be collector of the church rate, but without stating for what period, and the condition was for his accounting for all moneys collected by him upon a rate then referred to, and also on all and every other rate thereafter to be made and collected by him. It was held that the surety was answmrable only for the principal in that single appointment, and not for subsequent appointments, it appearing to be an annual office. So is the case of Hassell v. Long, 2 M. & S. 363. There the condition of the bond extended to the collection of taxes that might thereafter be assessed, and any such assessment being very improbable before the end of the year, it was urged that it might refer to assessments made after the year. The court, Lord Mlenborough, C. J., says, that “ as the consequences of .giving to the condition a more enlarged construction, so as to extend the responsibility beyond the current year, would be of so grievous and burdensome a nature, we think it requires more clear and certain words than are to be found in the instrument.” To the same effect is Leadley v. Evans, 2 Bing. 32; Pearsall v. Summersett, 4 Taunt. 593. The' same doctrine is recognized in Bigelow v. Bridge, 8 Mass. 275" court="Mass." date_filed="1811-10-15" href="https://app.midpage.ai/document/bigelow-v-bridge-6403786?utm_source=webapp" opinion_id="6403786">8 Mass. 275, and United States v. Kirkpatrick, 9 Wheat. 720" court="SCOTUS" date_filed="1824-03-23" href="https://app.midpage.ai/document/united-states-v-kirkpatrick-85450?utm_source=webapp" opinion_id="85450">9 Wheat. 720; Dedham Bank v. Chickering, 3 Pick. 335; Exeter Bank v. Rogers, 7 N. H. 21; South-Carolina Society v. Johnson, 1 McCord 41; Moss v. State, 10 Missouri 338. These cases clearly establish the doctrine that a surety is bound for the conduct of the officer during the term to which his then appointment extended, and not beyond.

But it is said that in the casé of the town agent, he is to hold the office until another is chosen, and it is assumed that the replications are to be viewed as stating such a case, inasmuch as they state that he held the office from July 18, 1857, to February 18, 1859. Taking this view to be correct, although it may be urged that the allegations are not inconsistent with the idea of successive appointments, still we are of the opinion that the sureties are not liable for the misconduct of the agent after the expiration of his official year. Not that it is limited to the precise term of one year, but to that period contemplated by the law for the making the new annual choice or appointment, with reasonable time for the qualification of the officer, whether it be at the annual town meeting, in March, which may by necessity be adjourned from time to time, or in the month of April, as in the case of agents of the character now in question. In all these cases it is obvious that to make the new appointment, and qualify the new officer at the expiration of precisely one year, would be impossible; and the provision for holding the office until others are chosen, or chosen and sworn, becomes very convenient, if not indispensable. We are nót disposed to think, however, that the provision for holding until another is chosen, can be construed to dispense with the new annual appointment, or to extend it indefinitely. Nor can we hold that the sureties, on entering into this contract, could be presumed to engage for any period beyond the official year.

These views are fully sustained in Chelmsford Company v. Demarest, 7 Gray 1, and in the Mayor v. Howe, 2 Harrington, 190, where it is laid down that a surety in the official bond of an officer whose appointment is annual, is not liable beyond the year, though the officer continues by law until a successor is appointed. These cases are clearly in point, and we are satisfied with the reasons assigned, and, therefore, the demurrer must be sustained.

There are many other questions raised by the pleadings, which it becomes unnecessary now to decide, and which, if farther proceedings are had, will not necessarily arise again.

Judgment for the defendant.