Green v. Young

8 Me. 14 | Me. | 1831

Weston J.

delivered the opinion of the Court.

The action before us is debt on bond, conditioned that Joseph Young, appointed a deputy of the plaintiff, then sheriff of the county of Lincoln, should faithfully perform the duties of that office. The breach found by the jury, accrued since the decease of the intestate. The efficacy of contracts does not cease, upon the death of one of the contracting parties. His representatives are liable to an action for its non performance, and his estate is thereupon charged to respond what may be recovered. Whether a man undertakes for himself or others, in regard to future transactions, die contingency that death may remove him before the obligation caw bo .fulfilled, must be in the contemplation of all parties, but it remains unaffected by that event. It may be more difficult to obtain satisfaction for a violation of what the contract enjoins; but the right oí the party injured to a full indemnity is unimpaired.

The intestate undertook that the principal in the bond should discharge the duties of the office, to which he was appointed. For what period ? So long as ho continued in office, under that ap pointment. The breach found then is within the very letter of the condition. The counsel for the defendant sets up, as a limitation of the liability of the intestate, that it is confined to breaches accruing in his life time. This limitation is not to be found in the instrument ; and if it is sustained, it must arise by construction of law from the nature of the undertaking. We have examined with care the cases cited for the defendant, but can find nothing to justify the limitation for which he contends. The plaintiff had a right to repose upon the solvency and sufficiency of the surety. If his security in regard to future breaches ceases upon the death of the surety, he might suffer, however vigilant. He might incur severe responsibilities, arising from subsequent breaches, before he could be advised of the death of the surety. If the defendant, representing the intestate, is not liable in this case, the death of a surety upon a sheriff’s bond, and upon the bonds of the treasurer of the state, of a county or town, of cashiers of banks, and of many other officers, who are required to give bonds, would exonerate his estate from subsequent breaches, and throw the whole responsibility upon surviving sureties. No adjudication to this effect has been cited, or can, it is believed, be found. And yet, if warranted by the principles of law, cases must frequently have arisen, in which such a ground of defence might properly have been taken.

The efficacy of a power of attorney continues only during the life of the constituent, because the act authorized is to be his act, through the agency of another, and his power to act, even by an agent, is extinguished by his death. But in this case, a breach of the condition of the bond did not depend upon any act or omission of the intestate. Whether a breach should or should not happen, depended upon the fidelity of another. This hazard the intestate voluntarily assumed, and we entertain no doubt thereby bound his representatives and his estate for all breaches within the condition of the bond, and for which other surviving sureties might be held accountable. Judgment on the verdict.

Vid. Gordon v. Calvert, 2 Simon’s Ch. Rep. 253; 4 Russ. 581, S. P.