| Mo. Ct. App. | Jan 2, 1893
— In January, 1885, defendant Cheaney qualified as public administrator of Henry county — an office to which he was chosen at the preceding fall
The matter for decision here is, whether the addition of such new duties to the position then held by Cheaney should discharge’these defendants as sureties on his bond. The trial court held the point against the defendants, and they have appealed.
After a careful consideration of the great number and bewildering variety of adjudicated cases on this subject — those cited by industrious counsel and others found in the books — we are convinced, of the correctness of the ruling of the lower court, and shall affirm its judgment.
Omitting for the present any reference to decided cases in Missouri (which we must say are in some confusion), and we find it announced by a number of the best courts in the land, that duties imposed upon an officer, different in their nature from those which he
The English ease last cited we find approved in Home Savings Bank v. Traube, 75 Mo. 199" court="Mo." date_filed="1881-10-15" href="https://app.midpage.ai/document/home-savings-bank-v-traube-8006993?utm_source=webapp" opinion_id="8006993">75 Mo. 199. In this Skillett case, the point was this: A was appointed to the office known as collector of sewer rates, and for the faithful performance of the duties gave the bond in suit. Subsequently the office of collector of main drainage rates was created by act of parliament, and the duties thereof imposed on the office held by A; and the defense there, as here, was, that this imposition of new and additional duties on the officer had the effect to discharge the sureties on his official bond given for the faithful performance of the original duties. The English court held otherwise and decided that, though the bond covering the duties of the original office would not apply to the officer’s conduct as to the new duties, yet because thereof the bond did not become void as to the duties first imposed, and the sureties continued liable therefor.
These and other authorities that might be referred to hold, “that the sureties are not discharged by the imposition of new duties which are distinct and separable from those protected by the guaranty, unless such new employment renders impossible or materially hinders or impedes the proper and just performance of the duties guaranteed. Where the new employment is separate and distinct, and in no respect essentially
The case of Some Savings Bank v. Traube, 75 Mo. 199, is quite in point. There the plaintiff bank sued defendants as sureties on the bond of Rodel, employed in the first instance as bookkeeper, and the bond was. made to secure faithful performance as bookkeeper.
After Rodel entered the bank, and after the bond was. made, the bank required him to perform the additional duties of teller. Rodel’s misconduct was in the capacity of both bookkeeper and teller. It was contended in that case, as here, that the addition of new duties without their consent worked a discharge of the sureties on the bookkeeper’s bond. The court, however, held the sureties liable for Rodel’s misconduct as bookkeeper. In the opinion this language appears: ‘‘If the bank, by requiring new and additional duties of Rodel, or by any other action on its part, prevented the-proper discharge of his duties as bookkeeper, we do-not think the sureties would be bound for any dereliction or default thus occasioned. * * * It is clear that the sureties could not be held for any defalcations of Rodel as teller. * * * Where the omission of Rodel to perform his duty as bookkeeper is wholly disconnected from any improper act on his part as teller, and was not superinduced by his appointment as teller, we do not see why the sureties should not be held liable therefor.”
Applying now the law, as thus understood, to the case here, and it seems clear that these defendants, sureties on Cheaney’s bond, as public administrator, must be held for his default in so far as concerns his maladministration of the duties of public administrator, properly so called, and that they cannot be held on account of any default in the performance of the duties pertaining to the office of public guardian and curator, which were created and imposed on Cheaney afte'r these sureties signed the bond. It was the purpose of this action to reach the first- only. Defendants were not called on to make good any default in the new duties or additional office which had been assumed or imposed on their principal.
The judgment is affirmed.