— The bond sued on is in these words:
Know all men, that we, II. S. Green as principal, and E. N. Chamberlain and Robert Bell as sureties, are held and firmly bound unto Theodore Kuhl, county treasurer, and his sureties, Crawford County, State of Towa, in the sum of four thousand no one hundredth dollars, for the payment of which well and truly to be made, we bind ourselves, our heirs, executors and assigns, firmly by these presents. Dated at Dow City, Iowa, this 13th day of January, 1904. The condition of this bond is such that, whereas, the said H. S. Green has been appointed a county depositary of public funds within and for said county. Now, if he shall render a true account of his office, and of his doings therein, to the proper authority, when required thereby or by law, that he will promptly pay over to the person or officer entitled thereto all money which may come into his hands by virtue of.his office;*548 that he will promptly account for all balances of money remaining in his hands at the termination of his office; that he will exercise all reasonable diligence and care in the preservation and lawful disposal of all moneys, books, papers,’ securities or other property appertaining’ to his said office, and deliver them to his successor, or any other person authorized to receive the same; and that he will faithfully and impartially, without fear, favor, fraud or oppression, discharge all duties now or hereafter required of his office by law — then this .bond to be void, otherwise of force and virtue. H'. S. Green. • • Robert Bell. E. N. Chamberlain.
At the time of the execution of such bond, the plaintiff was the county treasurer of Crawford County and continued in such office up to the time of the trial of this case in the court below. H. S-. Green was a banker owning and operating an unincorporated bank, known as the “Exchange Bank of Dow City.” Eor more than a year prior to the execution of the bond, the plaintiff, while acting as county treasurer, carried an account in the Exchange Bank by depositing moneys therein and drarving the same from time to time. The deposits in large part were made in this wise: He-permitted taxpayers in the vicinity of Dow City to pay the amount of their taxes into the Exchange Bank, and, upon being notified of such payment, he sent the tax receipts to the Exchange Bank to be delivered to the taxpayers. The bank, upon receiving payments from the taxpayers, charged itself by credits to the account of Theodore Kuhl, county treasurer. Whether these credits were made before or after the delivery of the tax receipts to the taxpayers does not appear in the record. About January 13, 1904, Green applied to the defendants severally and stated to each of them that he expected to he appointed on the following day by the board of supervisors as a county depositary for the public funds of the co-rinty, and that it was necessary for him to have a bond for such purpose. Upon this statement of
Crawford County claims no interest in tbe funds on deposit in tbe Exchange Bank, nor does tbe plaintiff now claim that such county has any interest therein, although plaintiff in bis original petition averred that the funds in question were deposited in tbe Exchange Bank as public funds. He later filed a substituted petition, in which be omits all allegations as to tbe public character of tbe funds, but claims to recover on tbe bond in bis own individual right-, on tbe theory that tbe same was given to secure him in tbe repayment of such moneys as should be deposited by him in tbe Exchange Bank regardless of their public character. He claims to recover upon tbe bond, not as a statutory bond, but as a common-law bond. His contention is that tbe same is a valid obligation and supported by sufficient consideration, and that tbe defendants are liable to him under tbe express terms of tbe instru
A county treasurer shall be liable to a like fine for loaning out or in any manner using for private purposes, State, county or other funds in his hands, except that when permitted by the board of supervisors by resolution entered of record, he may deposit such funds in any banks in the State to any amount fixed by such resolution; but before such deposit is made, such bank shall file a bond with sureties to be approved by the treasurer and the board of supervisors in double the maximiim amount permitted to be deposited, conditioned to hold the treasurer harmless from all loss hy reason of such deposits.
From what we bave already said, it is manifest that a correct ruling by the trial court at this point would not bave saved tbe plaintiff at tbe close of all the evidence.
Notwithstanding such error, therefore, tbe judgment below must be affirmed.