58 Ga. App. 167 | Ga. Ct. App. | 1938
Pulaski County brought this action against J. J. Whitfield, a former commissioner of roads and revenues of that county, and Fidelity and Deposit Company of Maryland, as surety upon Whitfield’s official bond; to recover attorney’s fees and traveling expenses alleged to be damages arising from an alleged breach of the bond. Each of the defendants filed demurrers to the petition as finally amended, and the court sustained the demurrers and dismissed the ease., The petition set forth, in substance, the following facts and allegations: Before the commencement of the action, Whitfield had been county commissioner of Pulaski County. The county owned Georgia State Highway refunding certificates of the aggregate face value of $125,000, which were in the custody and control of Whitfield, who entered into an agreement with the Trust Company of Georgia, hereinafter called the trust company, by the terms of which the trust company undertook to act as “escrow agent” of the county in handling the certificates, in accordance with the following plan: At the time of the execution of the agreement the county had outstanding and unpaid $95,000 worth
Both the agreement and the contract provided, with respect to the services to be rendered by the escrow agent, as follows: That the trust company, as agent, should receive title to said certificates and hold them until the time for their redemption, and upon their redemption to present them- for payment, and receive payment thereon; to accept payment of the certificates and to apply the proceeds to the retirement of the bonds and interest; and to invest and reinvest any funds which the escrow agent might not require for immediate use, in the securities of the State of Georgia, or the bonds of any county of the State or any municipality thereof, or in bonds or other securities of the United States of America, or other securities in which trust funds might by law be invested, and to hold the investments until such time as the proceeds thereof might be needed for the payment of the principal and interest of
The contract was supported by the resolution referred to therein, in all particulars except the terms of the contract which relieved the escrow agent from liability for mistakes of judgment, for the decline in value of any securities purchased by it, and against any liability except for its own breach of trust. The resolution was silent also in respect to that portion of the contract wherein it provided that the escrow agent should not be responsible for the default of the highway department in the payment of the certificates, and that the only duty in that respect was to present the certificates for payment. The resolution was likewise silent in regard to the provisions that the escrow agent was not bound to enter into any litigation unless it had first been indemnified against expense, loss, and damage. The resolution appears upon the minutes of the county commissioner, but the contract was never recorded. When Lee, the successor of Whitfield, took office, he was at first unable to find the highway certificates, and made demand upon WThitfield for them. WTaitfield informed Lee that the certificates were on deposit with the Trust Company of Georgia, but did not inform him upon what terms the trust company held them. Whereupon Lee, as county commissioner, wrote to the trust -.company, inquiring whether it held the certificates, and, if so, upon what
In the petition in the present cause it is alleged that the contract between Whitfield and the trust company, the resolution upon which it was based, and the entire transaction were unlawful and void, in that the resolution was passed and the contract was entered into without authority of law; that the whole constituted an invalid transaction, in that Whitfield as county commissioner was without authority of law to appoint the trust company as escrow agent of Pulaski County, or to empower the escrow agent to take a transfer and assignment of the certificates, or to collect them as they matured, and was without authority to hold the proceeds of the certificates as a sinking-fund for the purpose of retiring the bonds referred to in the resolution; that the commissioner unlawfully undertook to designate the trust company as
The petition alleged that it was the official duty of Whitfield to disclose to his successor all the facts relating to the alleged disposal of the certificates, and all the terms and conditions under which the trust company held the certificates; that it was the duty of Whitfield to preserve and keep all documents and writings relating to said certificates where the same could be readily and reasonably found, and to disclose to his successor where the certificates were, and upon what terms and conditions they were held by the trust company; that it was the duty of Whitfield, as commissioner of roads and revenues of the county, to recover from the trust company the certificates, which the company held without
The petition contained no allegation that the trust company was at any time insolvent, or that the county ever made any demand, or even a request, upon the company for the return of the securities. Furthermore, there is no averment in the petition that the alleged breach- of Whitfield’s official bond diminished the value- of the securities, or that the county suffered any loss therefrom, ex
It is apparent from the facts and allegations of the petition that commissioner Lee, if he had exercised ordinary care and diligence before filing the suit, would have demanded .or requested of the trust company to return the certificates to him, and that his request would have been complied with. It follows that any attorney’s fees or expenses incurred by the county in the litigation can not justly be charged to the breach of Whitfield’s official bond. Moreover, the only items of damages contained in the petition are attorney’s fees and traveling expenses alleged to have been incurred by the county in the previous suit. That action was voluntarily dismissed by the county, a settlement of the case having been made. The first suit was on the identical official bond declared upon in the present action, and the first suit prayed for judgment against Whitfield and his surety “for the costs, damages, and expenses incurred by it [the county] now and hereafter in prosecuting the present suit.” While the trust company and the county were the only parties to the settlement contract, by the express provisions of the contract it was to operate not only as a complete compromise and settlement of all controversies between the parties to the contract, but “especially in settlement of all issues involved in a suit recently brought by Pulaski County in Pulaski superior court against Trust Company of Georgia, J. J. Whitfield, and others.” In view of that language, it clearly appears that the contract of settlement covers the cause of action declared upon in the present case. However, the able counsel for the plaintiff contends that the settlement contract did not release the surety, because its risk was not thereby increased. We do not think that principle of law is applicable here. The applicable principle is that there can be but one satisfaction for one wrong, and the acceptance of such satisfaction from one of two or more joint defendants satisfies and extinguishes the cause of action against all of them. In Donaldson v. Carmichael, 102 Ga. 40, 42 (29 S. E. 135), the court said; “The plaintiff is entitled to only one satisfaction; and if the manner of releasing one involves satisfaction in whole or in part of the claim, it will enure to the discharge, pro tanto, of all who are liable (98 N. Y. 412; 44 Barb. (N. Y.)
We can not agree to the contention of counsel for the county that Lee, the commissioner, had no authority to make the settlement contract, and therefore that the contract was illegal and void. Where a county, as in this case, holds a claim for unliquidated damages, the sole commissioner, as the governing authority of the county, has the discretion of determining how much the claim is, and when it is satisfied. The cases relating to State governments, cited by counsel for the county, are not applicable here. As well expressed in the brief of counsel for the defendants: “A county is not a sovereign; it is a corporation and a political subdivision of the State. Its fiscal authority must of necessity exercise discretion in agreeing upon and adjusting controversies between the county and others. That discretion is conferred by legislative enactment which confers complete and exclusive jurisdiction and authority, in managing and controlling the property of the county, upon the ordinary, and authorizes him to audit and allow claims against the county. With respect to these matters, the ordinary, or county commissioner here, occupies the same relation to the county as the General Assembly occupies to the State. There is no statute which prohibits the commissioner from compromising a claim the county may have against another, where the law does not fix the liability and the amount of the liability. Accordingly, such matters fall within the broad discretion vested in the commissioner, and any contract he may have made, which is not tainted with fraud (and none is here alleged), must be enforced. Certainly the county should not be permitted to retain the fruits of the settlement contract, while at the same time disavowing its burdens. If a contract is prohibited by law, it is of course invalid; but the prohibition must be express or arise by necessary implication from some statute clothing another with the power or making provision for the exercise of the function with which the action taken is inconsistent. Here- there is neither, but on the contrary the statute, at least by necessary implication, does clothe the commissioner with power to determine whether the
Judgment affirmed.