6 Mo. App. 221 | Mo. Ct. App. | 1878
delivered the opinion of the court.
This action is upon a bond given by one Bodel as principal and the defendants as sureties, dated May 30, 1867. The penalty of the bond is $5,000, and it is conditioned that, whereas Bodel has been by the board of directors of the Home Savings-Bank of St. Louis appointed bookkeeper of said bank, and whereas said Bodel may from time to time by the said board of directors be continued and reappointed book-keeper of said bank, “ now, if the said Emil Gr. Bodel shall well and truly and faithfully perform the duties of book-keeper of said bank for and during all the time he shall hold such office of book-keeper of said bank, and for and during all the time he may continue or act as such book-keeper of said bank, whether under the present appointment or until further reappointment, and shall and will well and truly and faithfully account for and render over to said bank all such money, goods, chattels, and other effects and things as may come into his possession or under his care or charge while in the service of said bank as such book-keeper, either under the present appointment or a future reappointment, and shall, while he continues in such service, either under the present
The petition alleges that Eodel was on May 30, 1867, the book-keeper of plaintiff, and continued to be such book-keeper from that date until August 1, 1872.
The breaches of the bond for which a recovery is sought are assigned as follows : —
“Plaintiff says that said Eodel did not well and truly and faithfully perform the duties of book-keeper as aforesaid, and that he did not to the best of his ability perform all the trusts reposed in him, and all the duties devolved on him by the by-laws, rules, orders, and resolutions of the board of directors of plaintiff; but that, on the contrary, he did, while in the service of said bank, falsely enter in the books thereof, on many different occasions, certain sums of money as paid out by said bank, which had never in fact been paid out, and also neglected and failed to enter in said books certain sums which had been paid into said bank and which should have been so entered. Also that he did, on many occasions, fail and neglect to enter in the said books various payments' of money made, and of sums received by said bank, and that he did, on many occasions, make erroneous and incorrect entries on said books.
“Plaintiff says that by reason of said false, erroneous, and incorrect entries made as aforesaid by said Eodel, and by reason of his failure and neglect to make entries of payments made by, or money received by, plaintiff, plaintiff has been damaged in the sum of five thousand dollars. And plaintiff further states that said Eodel did not well, truly, and faithfully account for, aud render over to said bank, all moneys that came into his possession and under his care
And the plaintiff asks judgment for $5,000.
The answer avers that Eodel was appointed only for one year, and was not afterwards reappointed; and says that there was no breach of the condition of the bond during the first year; that afterwards the duties of teller were imposed on Eodel by plaintiff, without the knowledge or consent of the sureties; that the duties of teller are more difficult and onerous than those of a book-keeper, and that the discharge of these duties by Eodel exposed him to a greater temptation ; and that defendants are therefore discharged, there being a variance from the contract. The replication denies that the duties of Eodel were changed.
On motion of plaintiff, supported by affidavit showing that the trial of the cause involved the investigation of a long account, the cause was, against the objection of defendants, referred to a referee to try the issues and report. The facts found by the referee cannot be more succinctly stated than they are in his own language, in his report, as follows : —
“ I find from the evidence offered in this case that the plaintiff appointed Eodel as its book-keeper on the fifth day of June, 1867, and that the bond in suit was given to plaintiff July 22, 1867 ; that plaintiff did not employ said Eodel on the recommendation of the defendants, or at their request; I find that the defendants were each of them acquainted with the duties and services ordinarily required and imposed upon the book-keeper of a bank, and that during the whole period of Eodel’s service with plaintiff the defendants had no information or notice that he was employed in any capacity by plaintiff except
“ The losses sustained by the plaintiff by the reason of the errors and misconduct of Rodel consist of (1) losses by his act as book-keeper and (2) losses by his act as bookkeeper and teller. ■ Upon the application of the defendants, I required the plaintiff to show an account of the losses claimed to have been sustained by it by the acts of Rodel; and the plaintiff produced a statement of such losses, which is herewith returned.
‘ ‘ The evidence before me has been directed to the items ■of this statement.
“It is contended by the plaintiff that the language of the bond is comprehensive enough to cover, and does substantially cover, all losses sustained by plaintiff by reason of Rodel’s acts in his employment as teller and bookkeeper.
“The defendants contend, on the other hand, that the employment of Rodel by plaintiff in the capacity of teller, without notice to them, was such an increase of the responsibilities of their principal, and a corresponding increase of
“ The assessment of the damages under this rule is attended with considerable difficulty, inasmuch as, acting as Rodel did, in the double capacity of book-keeper and teller, it is in many instances difficult, from the evidence, to determine in which capacity he inflicted upon plaintiff the actual loss.
“ The conclusion I have reached is, that only in those instances when Rodel failed to properly enter in the bank’s books moneys paid out by the plaintiff, so that the bank was caused thereby to pay the money out again, can it with certainty be assumed that the plaintiff lost by Rodel’s act as mere book-keeper.
“In the instances last mentioned, I charge the securities, the defendants here, and hold that the plaintiff is not under any duty to first proceed against the party who, by the mistake, has received his money twice.
“ On the basis above stated, the -losses by act of the bookkeeper I find to be as follows Then follow twelve items, amounting altogether to $6,483.87.
The referee further states that by Rodel’s failure to carry
Exceptions were duly filed to this report, and were overruled ; and at the same term a motion for a rehearing was filed, which was overruled at the next term ; and defendant Bircher appeals.
1. It is contended by respondent that one of the defendants cannot appeal without joining another, unless the proper steps have been taken to obtain a severance. This raised the question whether the common-law practice as to writs of error, which is also the practice prescribed by statute in this State (Wag. Stats. 1064 et seq.), is to be followed in case of appeal under the Practice Act.
The Practice Act provides that “ every person aggrieved by any final judgment * * * may make his appeal and it contains no provision similar to that in regard to writs of error, where it is provided that all persons living, and entitled to bring the writ, must join. Nor does it provide for a severance in a case of appeal. To say that the privilege of appeal is denied unless both join would, work injustice. Cases may arise in which only one defendant is aggrieved by the judgment, as where the action is for a tort. Both the language and the spirit of the Code seem to support the view that any one aggrieved may appeal, whether his co-defendants join in the appeal or not. This construction has been put upon our Code by the universal practice in this State since its adoption. And such is the practice in New York under a similar code. We are of opinion that any one of several parties, though on the same side, may appeal without the concurrence of his co-parties. Mattison v. Jones, 9 How. Pr. 153; 4 E. D. Smith, 27; Peer v. Cockeran, 1 McCart. 361.
2. Eespondent claims that the exceptions to a referee’s
The chief object of the motion for a new trial is that the attention of the trial court being expressly called to all exceptions taken to its action, an opportunity may be afforded for more careful examination and more mature deliberation, that errors may be corrected and new trials awarded, in many cases, without the delay and expense attendant upon an appeal. The State v. Marshall, 36 Mo.— Whether such a motion is necessary in case of a new trial by a referee, where the case has been referred to him to try all the issues, and where exceptions to his report have been passed-upon by the court, is a question which it might be interesting to discuss, did we consider the matter res integra in this State. The practice has been to file such a motion ; and to hold now that it does not suspend the judgment, and that, where it, is continued to the next term by the court, the party making the motion is to lose all benefit of his appeal by being deprived of his bill of exceptions, would be to unsettle the practice as to a matter of mere form in a way which could accomplish no good, and might work great injustice. „
3. The disposal of these points brings us to the consideration of the merits of the case.
The law on the subject of sureties is, that the surety will not be held liable where the risk is increased by the act of the party to whose benefit the suretyship is intended to enure. If the duties which the principal is to perform are varied by agreement between the principal and the obligee after the bond is executed, the surety will, as a general rule, be discharged.
A. agreed to do certain work for a company within a
So where a bond was entered into, the condition of which recited that the North-Western Railway Company had appointed W. their agent to sell coal at a salary of £100 per annum, conditioned that W. should duly account and for his honest c'onduct; afterwards the principal in the bond was allowed a commission of so much a ton in lieu of a salary, of which the sureties had no notice. W. proved a defaulter, and the sureties were sued on their bond. It was held that the change in the remuneration released the sureties. “ The change,” says Platt, B., “ imposed on the surety a risk he never undertook to bear. The surety’s bargain was that the clerk was to have the salary, the more certainly to be able to resist-temptation.” North-Western R. Co. v. Whinsay, 26 Eng. Law & Eq. 492; 10 Exch. 81.
Miller v. Stewart, 9 Wheat. 680, is a case often cited to the point that the liability of the surety is not to be extended beyond the express terms of his contract. In that case the bond was conditioned for the faithful performance of the duties of deputy-collector of eight certain townships. Afterwards the instrument of appointment of the deputy
In the Bank of Upper Canada v. Covert, 5 Upper Canada Q. B. 541, it was held that the surety for the performance of the office of bank-agent is not responsible for losses occurring after the nature of the agency has been changed and the agent appointed cashier, because the responsibility was different, though in some respects lighter; and that, though the bank might have exacted all the same duties of the officer without changing his name or office.
The sureties on a cashier’s bond are exonerated by an increase of the capital stock of the bank after the making of the bond. Grocer’s Bank v. Kingman, 16 Gray, 474.
Where one became surety for the conduct of a clerk of a bank, and where the clerk was appointed to a teller’s situation in the bank, the surety extended his suretyship to this new situation, and the clerk, whilst remaining in the same situation, undertook, on having his salary raised, to become liable for one-fourth of the losses on discounts, and this was not made known to the surety, it was held that the surety was discharged on account of the vai-iance, though the original agreement was that on which the liability was substantially incurred, the loss being occasioned by permitting a customer to overdraw. Bonar v. MacDonald, 3 H. L. Cas. 226.
To accept a surety known to be acting on a belief that there are no unusual circumstances by which his risk is materially increased, whilst the party thus accepting him
If these principles are applied to the facts of the case found by the referee, and fully supported by the evidence in this case, it would seem that defendant is not liable for the losses occasioned to the bank by the misconduct of Rodel, whether the immediate cause of the loss was his misconduct as teller or his misconduct as book-keeper. His temptation was increased by his appointment as teller ; and the risk of the sureties was increased. The engagement between himself and the bank was changed after the bond was signed, or else it never was that which was represented to the sureties. They engaged to become sureties for a book-keeper, not for one who was both book-keeper and-teller; and no-power of man can alter their engagement. It may well be that those who consented to become sureties for a bank book-keeper might have refused to assume the obligation had they known that he was to be the teller of the bank as-well. The undertaking of a surety is a dangerous one at best, and the courts, whilst they apply to its interpretation the rules applicable to other contracts, having by a fair interpretation defined the limits, will not suffer those limits to be extended a hair’s breadth.
Our attention is directed by counsel for respondent to the case of Rochester Bank v. Elwood, 21 N. Y. 88, decided by the Court of Appeals in New York in 1860. The point decided in that case is not in contradiction with the views expressed in this opinion; and -the reasoning of the court, so far as it applies at all, rather sustains them. That was a case in which the bond was conditioned for the faithful discharge by one of the obligors, of “ the trust reposed in him as assistant book-keeper of a bank.’"’ He embezzled some of the bank’s money, and made fraudulent entries to avoid detection. These fraudulent entries were made by him
Whatever may be said of the ruling in Rochester Bank v. Elwood, it is plainly aside from the point involved in the case at bar. The court there considers that the bond indicated the department of duty assigned to Gold to be that of a book-keeper ; that making entries in the credit-journal was book-keeping, and was within the range of the class of duties that might appropriately be assigned to an assistant bookkeeper. “.We are not informed,” say the court, “ what
In the case at bar, the principal obligor in the bond was engaged for a special department of duty, indicated in the bond itself, and was employed without the knowledge of the sureties in a quite different department, by which his responsibilities were increased, and he was exposed to temptation from which he would otherwise have been free. The sureties engaged for the faithful discharge of the duties of book-keeper, not for the discharge of the duties of bookkeeper and teller; and if, being employed in this double capacity without their knowledge or consent, Rodel made false entries in the books of the bank, by which erroneous payments of money made by him as teller were concealed, or in consequence of which they were made, whether the loss to the bank was caused by the wrong-doing of Rodel as book-keeper or by his wrong-doing as teller 'is immaterial for the purposes of this action. In neither case can the sureties of Rodel be held, because to hold them liable for the faithful discharge of his duties by one who is book-keeper and teller of a bank, when their agreement was to be responsible for the faithful discharge of his duties to the bank as book-keeper, would be to substitute a new agreement for the one that the sureties actually made. The referee in this case has found that the office of book-keeper and teller are
The judgment of the Circuit Court is reversed and the cause remanded.