Jenness v. City of Black Hawk, 2 Colo. 578

Jenness v. City of Black Hawk

2 Colo. 578 | Colo. | 1875

Wells, J.

I. In debt on bond the declaration showing the condition and assigning breaches, nil debet is no plea. Parish v. State, 3 Ind. 209; Jensen v. Ostrander, 1 Cow. 670; Parks v. State, 7 Mo. 379; Brents v. Sthal, 3 Bibb, 482; Crigler v. Quarles, 10 Mo. 320.

II. The ordinance set up in the fourth plea had no bearing upon the question presented by the residue of the plea. The averments as to this bring into the record no new element of fact material to the issue, and in considering the effect of this plea, may be disregarded. The averment that no obligee known to the law is named in the bond, is also beside the matter. If an obligation be executed to one by an impossible or fictitious designation, or the name of a person never in being, it is still a good obligation, and the person in fact intended may sue thereon in his own name, averring that the deed was made to him by the name therein mentioned. This averment may, therefore, be rejected as senseless. The remaining allegation of the plea, that the mayor and council had no authority to take the said writing *584obligatory, and that the same is wholly void, is contradictory of that which precedes, for herein it is implied that there are such persons in being as the mayor and common council, which is before denied. Moreover, whether the mayor and council might lawfully become the obligees in such an obligation as set forth in the narr., for the benefit of the city, is a pure question of law. It may be said, therefore, that the plea can only operate as a demurrer, the replication as a joinder in demurrer; in which, view the issue of law joined must be treated as waived by the pleas to the merits which had been interposed therewith. Waiving these considerations, however, if the mayor and council had no lawful authority to become obligees in such a bond as mentioned in the declaration, to the use of the city, then the bond never was of effect, either as the deed of the defendants, or anybody else, as, indeed, the plea further on asserts. This averment, therefore, amounts to non est factum. The replication, though possibly informal, sufficiently answers it. There was no error, therefore, in denying the defendant’s motion for judgment upon the fourth plea.

III. The sixth plea of the sureties is a traverse of the breach assigned in the bond, and should have concluded to the country. The plaintiff was at liberty, however, to pass by this error and reply. The replication re-asserts, in general terms, that the conditions of the defendants’ obligation had not been kept and performed. More than this was not required. The breaches set forth in the declaration were then sufficiently answered. Morris Canal Co. v. Van Vorst, 3 Zabr. 98; Treasurer v. Oswald, 2 McM.98; Steph. Pl. 355. It was unnecessary to again or more fully particularize them. The replication, it is true, assumes to answer the plea of “Walter B. Jenness, sixthly, above pleaded;” whereas Jenness plead but five times, and the sixth plea was that of his co-defendants. The replication, however, clearly answers this plea; it is expressed to be interposed to the plea sixthly before pleaded; there was no plea sixthly pleaded except that of the sureties, and, as we think, the *585name of tlie defendant Jenness, by the insertion of which the unQertainty arises, is false demonstration and may be rejected, according to the maxim. The prayer for judgment upon this plea, also, was, ..therefore, well denied.

IY. The error assigned upon the admission of the bond in evidence is answered by what has been before said. The declaration properly counted upon it as executed to the corporation. Ang. & Ames on Corp., § 647.

Y. It has sometimes been held that the declarations of the principal in an official bond are evidence against the sureties without reference to the time when, or the circumstances under which, they were made. Treasurer v. Bates, 2 Bailey, 362. The better doctrine appears to limit the operation of such declarations, against the sureties, to the case in which they are made, in the performance of some official act or duty and in reference thereto. 1 Phill. Ev. 525, * 526.* That in such case they are part of the res gestee, and at least prima facie evidence as to the sureties, is abudantly maintained by authority. United States v. Gaussen, 19 How. 213; United States v. Boyd, 5 id. 50; Stephens v. Crawford, 1 Kelly, 574; Dumas v. Patterson, 9 Ala. 484; State v. McKee, 1 Gill & Johns. 378; Graham v. County Commissioners, 9 Dana, 182; Dobbs v. Justice, 17 Ga. 624; Sumter v. Lewis, 10 Rich. L. 171.

We have seen no case, however, in which the statements of the principal were received, to charge the sureties, when made after the expiration of his official term. The reports or statement of account of Jenness, which was received against his sureties, and which was, indeed, the only evidence of his defalcation, was given the 11th of May, and his official term seems to have terminated early in the previous month. Nothing appearing in evidence upon the point, we, perhaps, ought not to. infer a holding 'over beyond the term of his appointment; and even if we should infer that his sue-, cessor delayed in qualifying, and that so Jenness held over, until the date of his report, it is, perhaps, doubtful, whether the state of the question is changed; for many authorities are to the effect that the sureties are *586not liable for the acts of the principal during such holding over. The reasoning upon which such statements of the officer, when made during, the official term, have been received against his sureties, would seem, however, to render them admissible in some cases, even though made after its expiration. The sureties obligate themselves to be answerable for what the principal does in his office: his official acts may, therefore, be shown to charge them ; every declaration, accompanying and explanatory of the act, is part of it.

In the present case the undertaking of the sureties was that their principal should duly account for and pay over all moneys which should come to his hands by virtue of his office. The nature of the official duty, and the character and purpose of the suretyship, imply, if the words of the condition do not, indeed, import, that a full and formal statement of all moneys received should be rendered in writing.

But in the nature of things, it cannot have been intended by the parties that such account should necessarily, and at all events, be rendered before the qualification of the officer’s successor.

The marshal was, it appears, charged with the collection of municipal taxes. These and other public dues may be, as in point of fact is frequently the case, in arrears, and the marshal bound to receive them down to the last moment of his official term. Having the probability of such payment in view, it would seem that the marshal might, unless a contrary requirement were imposed by the city council, lawfully defer his account until he should have completed his term; and that an account rendered seasonably after his outgoing might be held to perform the condition of the bond. It follows that an account rendered in a reasonable time after the expiration of the office would be in the performance of the duty imposed by the law, and contemplated by the condition of the bond, and would as fully affect the sureties as one rendered before that. The case of Elken v. The People, 3 Scam. 208, seems to furnish a satisfactory *587analogy. The admissibility of this account, therefore, depends upon whether it was rendered in reasonable time after the expiration of the officer’s term ; and upon the evidence contained in the record, we cannot say it was not. As to this question, every case must be governed by its own circumstances. For any thing which appears to us, the account may have been rendered at the first meeting at which the council were prepared to receive or act upon it; if so, it would seem clearly to be in fit time. We ought not to indulge in presumptions to render this evidence incompetent.

VI. The instructions prayed by the defendants assume that not only had a defalcation occurred in the former official term of Jenness, but that this was' also known to the city council at the time of the second appointment, upon which defendants became his sureties. Even if the facts were as supposed, the principle of the instructions is of doubtful application to a municipal corporation. But, while the evidence sufficiently exhibits that such defalcation did occur in the former term, evidence that it was known to the council is entirely wanting.

VII. The jury were charged to compute interest on the amount which Jenness had received, and had failed to pay over ; they were not informed as to the time during which such allowance should be made, but gave interest only from the date of the report rendered by Jenness on the eleventh of May. This computation was at least sufficiently favorable to the defendants. The allowance of interest was proper. The damages against the sureties are measured by the same rule as against their principal; as against the principal the demand had been liquidated by the account or report of May 11 ; and so from that date, at least, interest was given by statute. The judgment is

Affirmed.