16 Fla. 204 | Fla. | 1877
delivered the opinion of the court.
This is an action under the code brought by the Mutual Loan and Building Association against the sureties, Miles Price and John Price, upon the bond of O. B. Graybill, Treasurer of the Association. The bond, after reciting the election, is conditioned “ that if the said Charles B. Gray-"bill, his executors or administrators, shall honestly and in good faith serve as such treasurer during his continuance in said office, and hold and dispose of whatever he may receive as such treasurer as the Association or its Board of Directors may direct, and according to the provisions of the constitution, by-laws and regulations of said Association now existing, or which may be by them adopted, and at the expiration of his said office shall pay and deliver over to his successor in office, or any other person duly authorized to receive the same (by the authority of said Association,)
Upon a reference, the whole amount of the defalcation was ascertained to be the sum of $2,346.22, and as there was some question as to the date at which this deficit occurred, it was agreed by the parties that the deficit from JSbvember 18th, 1870, to June 15th, 1871, was $1,380.00; that the deficit from June 15th, 1871, to December 3d, 1871, was $505.71 ; and that the deficit from December •3d, 1871, to February 12, 1872, was $450.06. After evidence and hearing before referee, he found that the defendants were not liable for the deficit which occurred before ■the bond was executed, and that they were liable for the deficit which occurred after it was executed, embracing the deficits from June 15, 1871, to February 12, 1872, and so adjudged. To the report of the referee each party excepted ; the plaintiff to so much thereof as excused the sureties for the deficit occurring anterior Jo the giving of the bond, and the defendants to so much therof as charged them with the subsequent deficits.
The plaintiff’s ground of exception was that the referee “ ought to have found and reported ” that the defendants were responsible for the amount of the admitted default anterior to the date of the bond.
The exceptions were overruled, the report confirmed and judgment entered thereon. From this judgment this appeal is taken by the defendants, and the errors assigned involve the question whether the action of the referee and of the court in giving judgment for the amount of the defalcation during the two last periods stated was correct.
The plaintiff having taken no appeal, and the action of the court as to the first deficit not having been excepted to by either party, it is not here for review.
The defence of laches here is set up as to all the defalcations of the treasurer for which judgment was given. The officers of the corporation failed to have monthly or quarterly examinations of the treasurer’s ■ accounts, as required by their rules and by-laws. Does this relieve the sureties of their liability under this bond % The constitution and bylaws of the Association are mentioned as prescribing the rule and method of their officers accounting. That is the effect of the language used in the bond. Under its terms this examination is made no condition of the liability of the surety, and the neglect of the officers in this respect does not, 'under the bond, relieve the sureties. Does this failure to examine the accounts relieve the sureties under the general principles of lam applicable to such contract % In, the case
The sureties further claim that they are relieved from all liability for any defalcation that may have occurred after December 3,1871, for the reason that his term of office had then expired, and with its expiration their liability ceased.
The limit of the liability of the surety is the term of office of the principal. This doctrine, as a general rule, we do not understand to be denied by the appellee. Its position is, that under the broad language of this particular-bond, and the provisions of the constitution and by-laws of the Association, which are the law of its being when not in conflict with the laws of the State the sureties are bound during the continuance of the treasurer in office; and that as under the law of his office he was to hold until his successor was elected and qualified, his sureties are responsible for all defalcations which may occur anterior to the election and qualification of his successor.
The general statute, under which this corporation is formed, has no provision regulating the terms of office of
The question here is, is not this the limit of their liability ? Stating the whole question accurately, it is whether a bond given for the faithful performance of an officer’s duties during his continuance in office, in a case where the regular term is for one year, the officer to hold until his successor is qualified, is not limited to the time fixed by law for the expiration of the office rather than the time which he may continue in it. This is a question of no little importance. We have examined it carefully and accurately, and without entering into any introductory discussion of the general character of the contract of suretyship, we will give the cases covering the subject and dispose of this case as the principles announced require. The case of the Chelmsford Co. vs. Demarest, (7 Gray, 2.) In this case Demarest was surety on a bond of Phelps, treasurer-of the company, the condition of which was that “ whereas, said Phelps has heretofore been chosen treasurer of said company: now, therefore, if said Phelps,
The bond in this case having been given in June, 1871, the sureties recognize the official existence of the treasurer. 1 Vroom, 73; 3 Dutch, 407; 17 How., 442, and under the bylaws, his term extended to the second Monday in December, and for such further time as is reasonably sufficient for the election and qualification of his successor. The judgment of the court was erroneous in finding the sureties liable beyond this time, and for this reason must be reversed.
The judgment is reversed, and the case is remanded for further proceedings, conformable to law, and not inconsistent with this opinion.