169 Mass. 500 | Mass. | 1897
The defendants alleged at the trial that the bond was signed by the sureties upon an agreement that it should not take effect until it was also signed by the father of the principal, and that he never signed it. In reply to a question in writing submitted to them by the judge, the jury found that there was no such agreement between the principal and any of the sureties, and this part of the defence therefore fails.
The other contention of the defendants is that there was no evidence sufficient to warrant a finding that the bond was delivered so as to take effect as a binding contract, and that the presiding judge failed to give the jury proper instructions upon this branch of the case. The instrument was perfect in form, was signed by the principal and five sureties, and was executed in the presence of attesting witnesses. It bears date one day before the expiration of five years from the time when St. 1886, c. 93, (now St. 1894, c. 317, § 14,) took effect, requiring treasurers of savings banks to give a new bond as often as once in five years. A letter had previously been sent by one of the commissioners of savings banks asking for it. The treasurer filed with the commissioners of savings banks an attested copy of this bond, and so complied with St. 1889, c. 180, (now St. 1894, c. 317, § 14,) except that he did not accompany it with a certificate of the custodian of the bond that the original was in his possession. The treasurer was also treasurer of the town of Brookfield, and the proprietor of a drug store. The office of
There was ample evidence to warrant a finding that, after this bond was completely executed, he, as the principal in it, intended to deliver it to give it effect as a binding contract, and to have it pass from the possession of himself as the principal obligor to himself as the officer of the bank who "was the general custodian of the bank’s books and papers. The jury might well find that, acting officially, he afterwards held it on account of the bank as its property. They might find this, notwithstanding that St. 1889, c. 180, contemplates that the trustees of a savings bank will appoint some other person than the treasurer to be the custodian of his official bond.
The defendants contend that the bond could not become binding without a formal approval by a vote of the trustees that it was to their satisfaction. But this contention is unfounded. Their approval of it did not need to be by a formal vote. Amherst Bank v. Root, 2 Met. 522, 534. Nor is it a defence to this action that the attested copy of the bond sent to the commissioners of savings banks was not accompanied by a certificate of the custodian of the bond that the original was in his possession. The provision of the statute in regard to this is directory, and if a failure to comply with it subjects the treasurer to a penalty, or other officers to any other liability, it does not affect the validity of a proper bond which has been duly delivered and accepted. Amherst Bank v. Root, ubi supra.
But even if the trustees as a board never considered the question whether the bond was sufficient, we are of opinion that there was evidence to warrant a finding that the bond was delivered and accepted as a binding contract. The jury might well believe that the principal obligor delivered it-as an individual to himself .as an executive officer of the bank, and that as such executive officer he assumed to accept it, and continued to hold it as the property of the bank until he absconded, leaving it in the place where he had kept it. There it was found, and it passed to the receiver as a part of the property of the bank. In Amherst Bank v. Root, 2 Met. 522, 533, a distinction is pointed out between an act which would amount to an acceptance of a bond on the part of a corporation so as to give it legal effect as against the obligors, and that expression of approbation on the part of the directors which is required by its charter and by-laws. It is stated that, if the bond was properly executed and delivered in the mode required by law to give it effect, it may be deemed the deed of the principal and sureties to be enforced against them, although it may never have been approved by the directors. If the bond in the present case was delivered as and for a proper bond, the treasurer, as the chief executive officer of the bank, having the general custody of the papers of the bank, was authorized to hold it for the bank as its property, at least until the ownership of it was repudiated by
All the requests for instructions, and all the instructions given
The exception to the refusal to rule that, upon all the evidence, the jury were not entitled to find that the instrument was ever delivered as a common law bond, and the exception to the admission in evidence of the attested copy of the bond sent by the treasurer to the commissioners of savings banks, have not been argued, and we treat them as waived. No question was raised in regard to the right of the receiver to sue in his own name.
We discover no error in the proceedings at the trial.
Exceptions overruled.
These instructions were, in substance, as follows: “ A bond, like this, is a contract between two or more parties, and to make it a valid contract there must be what the law calls a delivery of it. There is no definition, that I know of, —a brief definition that can be cited of what a delivery is. But it ordinarily means that the contract shall have passed from the promisor into the possession and control of the promisee, or of somebody who holds it for him. Now it is sometimes said in books, that where a contract is made for the benefit of A. B., as, for instance, this bond for the benefit of this bank, and the bond is found in the possession of the bank, and there is no other evidence about it, delivery would be presumed. Acceptance would be presumed. In the case supposed here is a paper which is manifestly for the benefit of the bank, intended to give the bank security. It is found in the possession of the bank, but the parties are dead or gone away, and no evidence is produced and nothing can be produced, and there is no acceptance minuted upon it and no record of it; the courts say, under Such circumstances, acceptance may be presumed, — delivery and acceptance may be presumed, —upon the theory that that is the most natural view to take of it. The instrument has gone out of the hands of those who signed it and who are to be bound by it, and it is in the hands of the party who is to be benefited by it, and if nothing else appears, why, the natural view to take of it is that it is properly there; that the bank has not stolen it or got it without right, but that it has by the ordinary course of things got into the hands of the bank for whose benefit it was intended. . . . The bond in suit must have been executed or delivered to an officer of the bank in order to be a valid instrument. It makes no difference that this officer was treasurer whose bond it was. If the jury are satisfied by the fair preponderance of the evidence that the instrument in suit, after its execution by the signers, was retained by Gerald as treasurer of the bank, there is a sufficient delivery.”