59 Neb. 460 | Neb. | 1899
Lead Opinion
At the general election in 1894 Joseph S. Bartley was elected to the office of state treasurer, as his own successor. On January 3, 1895, he took the oath required by .1 aw, and tendered his official bond to the governor for approval. The sureties whose names then appeared upon the obligation were: Nathan S. Harwood, F. M. Cook, A. B. Clark, John H. Ames, Charles A. Hanna, Mary Fitzgerald, O. C. McNish and E. E. Brown. The governor did not approve the bond on the day it was presented, but returned it to Bartley, who promised to strengthen it by procuring additional sureties. • On January 9, 1895, the bond was again presented for approval with the names of Thomas Swobe, Cadet Taylor and W. A. Paxton added to the names of the original obligors. It was thereupon approved, and on the same day filed for record and recorded in.the office of the secretary of state. Bartley, at the end of his second term, was found to be a defaulter, and this action was instituted in behalf of the state to recover of the defendants, as his sureties, the amount of the defalcation. The cause was tried to a jury in the district court of Douglas county, and resulted in a verdict and judgment against all the defendants except Mary Fitzgerald, who succeeded in establishing the defense of incapacity to contract at the time
The original sureties contend that .they are not bound, because the bond was not accepted and approved on or before January 3, which was the first Thursday after the first Tuesday in that month. Brown further insists that the additional sureties signed without his consent, and that he thereby became released from his obligation. Paxton, Swobe and Taylor claim that the bond was already effective when their signatures were obtained, and that their undertaking is void for want of a consideration to support it. We will consider these defenses together. The petition alleges that the bond was delivered to the governor on January 3, and on that day filed for record in the office of the secretary of state. It is also alleged that the bond was afterwards returned to Bartley to obtain the signatures of additional sureties, and that on January 9 it was again handed to the governor, who then approved it and filed it with the secretary of state. These averments of the petition are traversed, and, after a careful examination of the record, we quite agree with the statements of counsel for the defendants, that the evidence conclusively shows that the bond was not filed in the office of the secretary of state until January 9. Prior to that date no contract relations existed between the state and any of the defendants herein growing out of the signing of the bond in suit. A bond, like a deed, is without validity until it has been delivered. Without delivery it is void. See United States Wind Engine & Pump Co. v. Drexel, 53 Nebr., 771; Duer v. James, 42 Md., 492; Donnelly v. Rafferty, 172 Pa. St., 587; Fay v. Richardson, 7 Pick. [Mass.], 91. As we understand the law, the governor was not the agent of the state to
Having reached the conclusion that Mr. Bartley’s bond was still in his hands and subject to his control on January 9, we will inquire whether he had, on that day, authority to deal with it so as to make it a binding contract between the sureties and the state. It is, we believe, a doctrine of universal recognition that the principal in an official bond has an implied agency to deliver it as the contract of his sureties. They intrust it to him for that purpose. See Pequawkett Bridge v. Mathes, 8 N. H., 139; Stephens v. Crawford, 1 Ga., 574; King County v. Ferry, 19 L. R. A. [Wash.], 500. The obligation in suit was given by all the sureties to Bartley, to be by him presented for approval and filed in the office of the secretary of state. There is nothing in the record to indicate that any of the sureties signed conditionally, or that there was any actual limitation upon Bartley’s implied authority to use the bond in furtherance of the purpose for which it was signed. Possession of the bond on January 9 carried with it, prima facie, the right to have it approved and delivered. See Sampson v. Barnard, 98 Mass., 359; State v. Rhoades, 6 Nev., 352. The sureties had the right to revoke their principal’s authority at any time before the bond was delivered; but without such
It is true that Bartley’s right to act as treasurer became extinguished upon his failure to have his bond filed and approved on or before January 3. See Compiled Statutes, 1899, ch. 10, sec. 15; State v. Lansing, 46 Nebr., 514. The state might, on or after January 4, appoint another person to fill the office, but it was not bound to do so. It might waive its right to oust Bartley, and elect to deal with him in the character which he assumed. Section 15 of the law in relation to official bonds was enacted for the protection of the public, and not for the benefit of sureties; and they, consequently, can not be heard to object that approval and acceptance were not within the prescribed time. See Holt County v. Scott, supra; Town of Ashkum v. Lake, 12 Ill. App., 25; Monteith v. Commonwealth, 15 Gratt. [Va.], 172; State v. Rhoades, supra. The bond in suit was, with the implied and express authority of the sureties, approved and delivered after the forfeiture occurred. The state accepted it, relied on it, and was induced by it to waive its right to exclude Bartley from the office of treasurer. The right to the office was claimed by virtue of an election. The bond so states; and the bondsmen can not be permitted to escape liability by denying now the existence of a right which in behalf of their principal they successfully asserted on January 9, 1895. See Holt County v. Scott, supra; Blaco v. State, 58 Nebr., 557, 78 N. W. Rep., 1056; State v. Rhoades, supra; Monteith v. Commonwealth, supra; Chandler v. State, 1 Lea [Tenn.], 296; Village of Olean v. King, 116 N. Y., 355; Swan v. State, 48 Tex., 120; Morris v. State, 47 Tex., 583; Waters v. State, 1 Gill [Md.], 302; Commonwealth v. City of Philadelphia, 27 Pa. St., 497; Middleton v. State, 120 Ind., 166; Mayor v. Harrison, 30 N. J.
Having disposed of the main question, we will now turn our attention to some other assignments of error upon which a reversal of the judgment is claimed. The petition charges that on January 2, 1897, Bartley transferred to the Omaha National Bank, in payment of a void warrant held by it, $201,884.05 of the money of the state, and that such transfer amounted to a conversion. Some days before the trial the defendants asked leave to file an amended and supplemental answer, setting forth that the transferee of the fund and holder of the warrant was a state depository, and as such had in its custody, at the time of the transfer, the money alleged to have been converted. The court denied the application, and this ruling is assigned for error. The claim of the defendants is that the depository bank is primarily liable for the loss of the money paid upon the warrant; that it and its sureties should have been brought into court and charged with the amount of the unauthorized payment; and that Bartley’s sureties should, as to this amount, have been entirely exonerated, or charged, at most, with a secondary liability. The legal effect of the transaction in question, according to the former decisions of this court, was to render both Bartley and the bank liable to the state as joint tort-feasors. See Bartley v. State, 53 Nebr., 310, s. c. on rehearing, 55 Nebr., 294; State v. Bartley, 56 Nebr., 810; State v. Omaha Nat. Bank, 59 Nebr., 483. The evidence in this case relating to that transaction is, in its essential features, the same as that given in the cases cited, and, therefore, according to a familiar doctrine of the law of torts, the state was at liberty to sue either or both or the joint wrong-doers. See Kellow v. Central I. R. Co., 68 Ia., 470; Johnson v. Chicago, M. & S. P. R. Co., 31 Minn., 57; Pollett v. Long, 56 N. Y., 200; Stone v. Dickinson, 5 Allen [Mass.], 29; Boyd v. Insurance Patrol, 113 Pa. St., 269. The cases cited in
Error is assigned on the admission in evidence of “Exhibit 23” tendered by the state for the purpose of showing the balance with which Bartley was chargeable at the end of his second term. This exhibit is a statement prepared by the auditor of public acounts, and purports to show the moneys and securities for which Bartley, as treasurer, was accountable to his successor on January 7, 1897. It was produced by Bartley and handed to his successor, J. B. Meserve, in the office of the treasurer on the morning of January 8, at the time the office was being turned over, and in connection with the accounting which was then being made by the outgoing to the incoming treasurer. It was, in substance, a declaration by Bartley, while in the act of accounting, that the amounts mentioned in the document were the amounts for which he should account. It was the duty of Bartley to account to his successor, and to turn over all moneys and securities with which he was chargeable. The sureties contracted that this should be done. It was an official duty, the performance of which was necessary to their exoneration. The accounting was made at the very time the law required it to be made; and we, therefore, think that, although Bartley had ceased to be the de jure treasurer by reason of Meserve’s having qualified, his declaration as to the amount of moneys and securities which he should turn over to his successor was admissible as evidence against the sureties. It was a declaration made during the transaction of business, for which they were liable and so became part of the res gestee. See 1 Green-
A further contention of the defendants is that the court held them liable for a defalcation which occurred during Bartley’s first term. This claim is based on the fact that Bartley, at the beginning of his second term, turned over to himself, as his own successor, a large amount of bank credits in lieu of actual cash. It is indisputably established that, in the accounting between the treasurer and the governor on January 8, 1895, Bartley produced what purported to be bank drafts, certificates of deposit, and other vouchers for money in bank, and that these credits were considered and accepted as the equivalents of money which they were supposed to represent. The attorney general insists that this transaction exonerated the first sureties and charged the second; and, we think, in view of the evidence, his position is tenable. The defendant sureties are, of course, liable only for moneys received by their principal during the second term; their contract does not bind them to answer for securities
Another assignment of error relates to the rulings of the court excluding the proffered testimony of the witness Balch, and the books of the Omaha National Bank in connection therewith. By this witness, and the books of the bank of which he was assistant cashier, the defendants proposed to show that the warrant, for the payment of which Bartley, as treasurer, drew his check for $201,884.05 on January 2, 1897, had been previously sold by him and the proceeds of the sale turned over to the state, or paid out for its use and benefit. We are entirely satisfied that the rejection of this evidence was not error. The books of the treasurer’s office are presumably a true record of the receipts and disbursements of the public revenues. It can not be assumed, without proof, that Bartley, in violation of his duty, charged himself with moneys which did not belong to the state. The rejected evidence does not go to the extent of showing that condition of affairs; and it had, therefore, no tendency to disprove the shortage disclosed by the state’s evidence. There being, at the time it is claimed the proceeds of the warrant were paid to the state, no proof of any defalcation during the second term, it is clear the evidence in question was inadmissible, except on the theory that Bartley had been charged, as treasurer, with moneys
It is finally contended that the court erred in directing the jury to find in favor of the plaintiff for the full amount claimed in the petition. This contention must be sus-° tained. There was conflicting evidence that should have been submitted to the jury. The action proceeded on the theory that Bartley had fully accounted for the treasury balance with which he was chargeable at the end of his first term. To prove that he had not so accounted, the defendants gave in evidence a transcript of a record of the district court of Lancaster county showing the institution and pendency of a suit brought, in behalf of the state, by the attorney general on his own motion, and, at the request of the governor, to recover of the first term bondsmen an alleged shortage of $335,000. The petition was verified by the attorney general on information and belief, but, according to his testimony, without any personal knowledge of the facts. The bringing of the action in Lancaster county was, in effect, a declaration by the state that Bartley had not accounted for the moneys received by him, as treasurer, during his first term. Public corporations are compelled to act through their officers and agents, and the declarations of such officers and agents, when made during the transaction of official business and in relation thereto, are admissible in evidence as part of the res gesta). See Gray v. Rollinsford, 58 N. H., 253; Chicago v. Greer, 9 Wall. [U. S.],
Reversed and remanded.
Dissenting Opinion
dissenting.
I am unable to agree with my associates to the proposition that the turning over by Bartley to himself, at the commencement of his second official term, of bank drafts, certificates of deposit and other credits for and in lieu of money relieved the bondsmen of his first term and charged the sureties for the second term with the amounts of such drafts, certificates of deposit and other credits. It was held otherwise in an able opinion by Lake, C. J., in Cedar County v. Jenal, 14 Nebr., 254, wherein it was stated: “Thus we see that, it being money that was in Jenal’s hands, belonging to the county, both the law and his official bond united in requiring him to hand that over
As to the decision in Bush v. Johnson County, 48 Nebr., 1, all I care to say is that the writer took no part in that decision.
I prefer not to express myself on the questions discussed in the opinion of Sullivan, J., relative to the execution, approval and filing of the official bond of Bartley, but place my decision that the sureties are liable upon the proposition that, when this case was last before us, a judgment in their favor was reversed, and the cause remanded for a new trial. This was, in legal effect, an adjudication that the bond was a valid obligation, and became the law of the case, binding alike upon the parties and the courts.