Forest County v. United Surety Co. of Baltimore, 149 Wis. 323

Forest County v. United Surety Co. of Baltimore

149 Wis. 323 | Wis. | 1912

ViNJE, J.

' Appellant contends that the obligation of a surety is strictissimi juris; that nothing can be taken against *327Mm by construction.; and that his liability cannot be extended beyond the very terms of the conditions of the bond; and cites Detroit Sav. Bank v. Ziegler, 49 Mich. 157, 13 N. W. 496; Gerber v. Ackley, 37 Wis. 43; Taylor v. Parker, 43 Wis. 78; People v. Pennock, 60 N. Y. 421; and Wilson v. State, 67 Kan. 44, 72 Pac. 517. All those cases deal with accommodation sureties. In the case at bar we have an indemnity bond •entered into for a money consideration. Such indemnity bonds partake of the essential features of insurance contracts and should be construed most strongly against the party preparing and furnishing them. French v. Fidelity & C. Co. 135 Wis. 259, 115 N. W. 869; United Am. F. Ins. Co. v. American B. Co. 146 Wis. 573, 131 N. W. 994; American S. Co. v. Pauly, 170 U. S. 133, 18 Sup. Ct. 552. But, even so construed, the liability of a surety upon an official bond must be held to be limited to acts done by the principal by virtue of .his office or by reason of the fact that he held the office; that is, some breach of official duty must be shown in order to constitute a breach of the bond. Gerber v. Ackley, 37 Wis. 43; Barnes v. Whitaker, 45 Wis. 204; Bishop v. McGillis, 80 Wis. 575, 50 N. W. 779; State v. McFetridge, 84 Wis. 473, 54 N. W. 1, 998; Dishneau v. Newton, 91 Wis. 199, 64 N. W. 879. In Gerber v. Ackley, 37 Wis. 43, the court says: “Acts •done virtute officii are where they are within the authority of the officer, but in doing them he exercises that authority improperly, or abuses the confidence which the law reposes in 'him.”

It is strenuously urged by the appellant that there is no liability on the part of the surety because the moneys received by ■Judge Dawley, for which a recovery is sought, were not. re•ceived by him virtute officii. • By a reference to the bond it will be seen that it is conditioned to account for all moneys that shall come into the hands of the principal by reason of his ■ holding such office. Whether such a condition is broader than ■one limited to account for all moneys that shall come into his bands by virtue of his office need not now be considered or *328determined, because we are of the opinion that the complaint-sufficiently alleges a breach of the bond within the latter condition. Sec. 2454, Stats. (Supp. 1906: Laws of 1903,. ch. 45)., authorizes a county judge, not vested with civil jurisdiction, to receive from the county treasury $5 per day for services not pertaining to probate business, compensation for which is not otherwise provided. The county court of Forest County had no civil jurisdiction, so Judge Dawley was entitled to render bills against the county for extra services-within the statute. Such authority was conferred upon him by virtue of his office. The bills rendered as shown by Exhibit B were for such alleged extra services. In presenting-bills against the county it became his duty as county judge to render just and true bills; to render bills for services actually performed and for such services only for which he was entitled to compensation. This he did not do. The demurrer-admitted that he was not entitled to compensation for the-services claimed. In presenting such illegal claims and receiving money on them he breached his official duty. It was within his authority to present claims against the county for-services rendered within the provisions of the statute, and they were presented by virtue of his office — certainly by reason of his holding the office. In presenting illegal claims he exercised that authority improperly and abused the confidence-which the. law reposed in him, as expressed in Gerber v. Ackley, 37 Wis. 43. A similar breach of duty was discussed in Jones v. Lucas Co. Comm’rs, 57 Ohio St. 189, 48 N. E. 882, where the court says:

“The proposition that the drawing of money from the-county treasury, by the county auditor upon his own warrant, oh a claim in his own favor, known by him to be illegal, for-alleged services rendered the county, is a matter merely of individual action, and not a disregard of official duty, is at least a startling one. It appears to be based upon an attempt to distinguish between the man as an individual and the man as-, an officer. The distinction cannot hold.”

*329See, also, Milwaukee Co. v. Hackett, 21 Wis. 613; Kewaunee Co. v. Knipfer, 37 Wis. 496; and Quaw v. Paff, 98 Wis. 586, 74 N. W. 369.

Since the condition of the bond is that the principal “shall faithfully discharge the duties of the office,” a breach thereof occurred 'when such duties were not faithfully discharged. The breach of official duty and the breach of the bond went hand in hand. The complaint therefore states a good cause of action as to all the items therein contained against both defendants. That being so, the objection that several causes of action are improperly united, in that no recovery can be had against the appellant as to some of the items, even if there be a liability as to others, falls.

The only other point argued in appellants’ brief meriting notice is that the complaint fails to state a cause of action because it does not appear that the action is prosecuted under sec. 984, Stats. (1898). It is claimed that the chairman of the county board, and not the county, is the proper party plaintiff pursuant to the provisions of that section. Counsel, though they quoted the section, entirely overlooked the provision therein that “every action mentioned in this section shall be prosecuted in the name of the state, county, town or other municipality to which such bond is given.” Here it is prosecuted in the name of the county, and properly so. The fact that the statute imposes the duty upon the chairman of the county hoard to see that the action is prosecuted does not mean that it must be done in his name, when the statute specifically provides otherwise.

By the Oourt. — Order affirmed.

Winslow, C. J., and Babuls, J., dissent.