State v. Wood, 51 Ark. 205

State v. Wood

51 Ark. 205 | Ark. | 1888

COCKRILL, C. J.

It is argued with great earnestness that the treasurer’s bond which is the foundation of the suit is void, upon the ground that it names no obligee. The fallacy lies in the assumption that the obligation has not been assumed to any one.

A bond is construed like any other contract or instrument of writing — it is enough that the intent plainly appears, though it be not fully and particularly expressed. Partridge v. Jones, 38 Ohio St., 374. “ If there ever was a time,” says the court in the case cited, quoting from another case, “when the court listened to trivial verbal inaccuracies in contracts when the real meaning and intention of the parties was plain, that time has gone by, and the only object of the courts is, that when the meaning and intention of the parties are perfectly plain, no grammatical inaccuracy or want of the most appropriate words, shall render the instrument unavailing.”

I. County Treasurer: Informalities in bond of. It was never regarded as necessary that the obligee in bond should be specified eo nomine. It was enough if he was so designated that he might be certainly ascertained. Preston v. Hall, 12 Am. Law Reg. and note; Fellows v. Gilman, 4 Wend., 419. It needs no statute to enable an officer to give a valid bond for the faithful payment of money that may come to his hands, and, if we regard the bond in suit as a common law obligation without looking for aid to the statute which the parties undertook to follow in drafting it, it will be seen that the fair import of the language used is that the bond was intended for the benefit of all whom it might concern, that is, any one who should be injured by the treasurer’s official delinquency. It stipulates, among other things, that the treasurer shall truly account for and pay over all moneys coming to his hands by virtue of his office, and the principal and sureties by the terms of the bond bound themselves to the faithful discharge of this duty. The obvious intention of this was to protect and give indemnity to all persons who might be damnified by the officer’s neglect legally to keep and pay out the public funds. That is the primary object of all such bonds. Huffman v. Kopplekom, 8 Neb., 347; Crook Co. v. Bushnell, 13 Pac. Rep., 886. The condition which shows the design of the bond is the important requirement in such an undertaking, and when that is properly framed, as it is conceded it was in this instance, “ the naming of an obligee is,” as Judge Cooley expressed it in delivering the judgment for the supreme court of Michigan, “ the merest formality possible, so that if the instrument omitted to name one, * * * the substance of the undertaking would remain.” Bay County v. Brock, 44 Mich., 45. The substance remaining, how can the bond be void for informality?

Action on bond. A bond upon the condition that an officer should make amends to every person who should be injured by his breach of official duty, was enforceable at the suit of any one who was damaged by his official default, when the rules of procedure required that only the party in whom the contract vested the legal interest could maintain an action on it. Fellows v. Gilman, 4 Wend., supra. The reason is stronger for its enforcement, since the change of procedure enables the party for whose benefit the contract was primarily executed to sue in his own name. Hunnicutt v. Kirkpatrick, 39 Ark., 172; Hecht v. Caughron, 46 Ib., 132. And it is immaterial in such cases that the party beneficially interested is not mentioned 'in the instrument, but is undisclosed or unknown. Pomeroy on Rem., etc., see. 177. There remains then, not even a technical objection to the enforcement of the bond in suit. The question for the circuit court was simply, who should be permitted to stand as plaintiff in the action, the State not being the party in whose name the contract was executed, nor the party in interest? The statute contemplates that the State shall stand as trustee for the parties who have the beneficial interest in such cases, as is evidenced by the requirement to execute the bond to her. Mansfield’s Digest, sec. 1187. This is not required as a matter of-substance, but only as a part of the machinery of convenient administration, and it would impose no new condition upon the obligors to presume that it entered into their contract that the bond should be enforced in the usual way. County v. Bunberry, 45 Mich., 79.

But aside from this consideration another provision of the statute allows the State to become the plaintiff for the use of a county where the latter has a demand to be enforced. Mansfield’s Digest, sec. 1067. The object of the present suit is to replace in the county treasury money which has never been legally drawn therefrom. The defaulting treasurer was still in office when this suit was instituted, and the county or the State in its behalf was the proper party to move in the matter. Hunnicutt v. Kirkpatrick, 39 Ark., sup.; Pettigrew v. Washington County, 43 Ib., 33. Moreover no objection-was taken in the lower court to the State’s capacity to sue, and none can be heeded now. Pettigrew v. Washington County, supra.

It is argued that no breach of the bond is shown.

2, Same: Breach of bond.

3. Same: Measure of damages. At a regular annual settlement the county court audited treasurer’s accounts, and upon counting the money brought into court by him, found that he was in default. His excuse for not bringing the other funds into court as he was required by law to do, was that the money had been lost by the failure of a local bank in which he had deposited it. The court refused, as it should have done, to allow him credit for the amount thus lost, but charged him with the full amount. These facts are made to appear from the county cpurt’s order of settlement. They show a failure to keep the public funds to be paid to those entitled to receive them. That was a breach of the bond. Croft v. State, 24 Ark., 550. The money was lost to the county, and the measure damages was the amount found due by the county court with legal interest from the date of auditing the account. That settlement concluded any 'further inquiry into the state of the officer’s accounts. Hunnicutt v. Kirkpatrick, sup.; Jones v. State, 14 Ark., 170; Wycough v. State, 50 Ib., 102; George v. Elms, 46 Ib., 260.

No issue was made against the recovery, except upon the points first mentioned ; these were technical and formal rather than substantial. No objection was made upon the right to proceed in equity, and as the facts are undisputed and show a cause of action in the plaintiff, judgment should have been rendered accordingly. Freed v. Brown, 41 Ark., 495 ; Smith v. Hollis, 46 Ib., 17.

The judgment of the circuit court is reversed and judgment will be entered here in accordance with this opinion. It is so ordered.