48 Neb. 279 | Neb. | 1896
At the general election held in Keith county, November 8, 1887, Samuel A. Stoner was elected to the office of treasurer for the term commencing January, 1888, and terminating January, 1890. He presented to the county commissioners his official bond, signed by himself as principal and by H. L. McWilliams, H. L. Goold, J. M. Houghton, W. H. Wood, and O. T. Carlson as sureties, which was duly approved, and the officer elected took possession of and assumed the duties of the office. On this bond there appears the following:
“Signed as additional surety, Sept. 11, 1888.
“George Beybrle.
“T. A. Meyers.”
On November 8,1889, there was executed and approved another bond, which, in addition to the usual recitation^ and conditions, contained the following statement: “It is understood that this bond is given as additional security.” This instrument was signed by Samuel A. Stoner as principal and H. L. Goold, J. M. Houghton, and H. Carnahan as sureties. During Stoner’s term of office as county treasurer he received from the sales of
The first question discussed by counsel for plaintiffs in error is, Does the evidence disclose any amount due from Stoner to the county? In his answer Stoner admitted the reception of the money as alleged in the petition, the county introduced the pages of the ledger which it was testified was the only book in which any entries were made in regard to these funds, and there was sufficient other testimony to establish that the entries were the accounts of the receipts of the funds by Stoner and their disbursements, and on each page there was an entry-showing a sum charged as collection fee. This entry one witness, who stated he was acquainted with the handwriting of Stoner, testified was, in his opinion, made
Section 20, chapter 28, Compiled Statutes, 1889, in relation to fees, provides as follows: “Each county treasurer shall receive for his services the following fees: On all moneys collected by him for each fiscal year, under three thousand dollars, ten per cent. For all sums over three thousand dollars and under five thousand dollars, four per cent. On all sums over five thousand dollars, two per cent. On all sums collected, percentage shall be allowed but once; and in computing the amount collected, for the purpose of charging percentage, all sums, from whatever fund derived, shall be included together, except the school fund. For going to the seat of government to settle with the state treasurer, and returning therefrom, a traveling fee of ten cents per mile, to be paid out of the state treasury. For advertising and selling lands for delinquent tax, an additional fee of five per cent, to be collected only in case such lands are actually
Counsel for plaintiffs in error further urge in this connection that the county did not show or introduce any evidence to the effect that Stoner had received all the fees to which he was entitled by law and his services rendered as county treasurer; that before it could recover it must have shown that there was nothing remaining his due as fees. This position is not tenable. The funds in question were for specific purposes, and — as to two portions of the funds at least — could not be diverted by the
The bond which was furnished by Stoner at the time he took possession of the office, and which we will hereinafter refer to as the first bond, had been signed, at the time of its approval, by H. L. McWilliams, H. L. Goold, J. M. Houghton, W. H. Wood, and O. T. Carlson as sureties, long after its approval by the county board had written upon it as of the date stated in the writing, “Signed as additional security,” and immediately under this appeared the signatures, then attached, of George Beyerle and T. A. Meyers. This, it is claimed, was a material alteration of the instrument, that it was made
It is contended that Beyerle and Meyers, who signed the first bond on September 11,1888, as additional surety, were not bound, for the reason they each signed with the understanding, or at least they had been informed, that the original signers of the instrument as sureties had consented to its being signed by Beyerle and Meyers, at the time, in the manner, and for the purpose they did sign. That they signed with the intention and expectation of becoming co-sureties of the prior signers of the bond in such capacity; that inasmuch as the prior signers did not consent to the signing and alteration, and such act avoided the instrument as to them, it ceased to be the contract which Beyerle and Meyers had agreed to sign and join in, and hence they were not bound by their signatures. There was no evidence to show that the prior sureties on the bond had any knowledge of the acts of the subsequent signers or their intentions, or that any consent was given; nor was it shown that either of the signers of date September 11, 1888, was informed that the original sureties had any knowledge of the intended subsequent additional signatures to be placed on the bond, or gave any consent thereto. The county did no act which resulted or could result to the injury of Beyerle and Meyers. There was no erasure of a name or names from the bond, no one was in any manner released before the bond was signed by them on September 11, 1888. It was their act of signing which effected the release of the prior sureties. Under the circumstances shown in evi
We will now turn our attention to the second bond given by Stoner, of date November 8,1889. It is claimed for plaintiffs in error that this second bond was given under an agreement between the sureties whose names appear thereon and one of the county commissioners, that one McWilliams, who was then away from home, should sign it as soon as he returned, and that it was not to be delivered or presented for approval until he had signed it; in other words, that their signing was conditional, and the condition was not performed; that at the-time of the approval of the bond one of the board had knowledge of the condition and its non-fulfillment, and that his knowledge was notice to the board of the facts. There could be no agreement or contract between one of the board of commissioners and other persons which would bind the county, unless the commissioner acted for, and under authority of, the board. (Treichler v. Berks Bounty, 2 Grant’s Gas. [Pa.], 445; Merrill v. Berkshire, 11 Pick. [Mass.], 269.) It appears from the testimony that this second bond, when it was presented to the board, was not in any manner irregular, or in such condition as to put the board upon inquiry. The names of the sureties who had signed it appeared in the body of the bond, and none others. Unless the board had notice of the condition, if any existed, modifying or affecting its signing, if presented to and approved by the board the sureties would be bound and liable for any default of the principal in its obligations.
Was the knowledge of one of the commissioners the knowledge of the board, or notice to it? In approving bonds the board acts as a body. The approval is not the-act of a member or individual members, or as persons,
It is urged that there was no consideration for giving, this second bond. In section 21, chapter 10, Compiled Statutes, provision is made for requiring and receiving additional bond of a county treasurer. The evidence shows that the conditions contemplated in the foregoing-section existed in the affairs of the county of Keith, and that the treasurer furnished the additional bond. There was no more lack of consideration for the execution of the second bond than the first. The consideration was; sufficient.
It is complained that the trial judge erred in not alloAv-ing the plaintiffs in error to show that it was agreed and understood, at least between the signers of the second bond as sureties and one member of the board, that the second bond was given for the one purpose of securing
It is further claimed that the shortages, if any were shown, existed prior to the time the second bond was given, and the parties who signed it cannot be held to their payment. The testimony shows that the treasurin’ received the proceeds of these bonds and of the moneys lie failed and refused to turn over, in the aggregate, the sum of $1,180 thereof. The page of the book introduced in evidence showed that at the date which closed his term of office the amounts which made the above stated sum were charges against the treasurer of moneys which should have been turned over to his successor. So much being shown, it devolved upon the opposite parties to prove the contrary. It was the duty of the treasurer to turn over to his successor all moneys in his hands belonging to the county, of for which he was liable to account. In the absence of proof as to when it was misappropriated, the presumption must be that it was at the end of the term and the liability would accrue at such time. (Heppe v. Johnson, 73 Cal., 265; United States v. Stone, 106 U. S., 525.)
It is further claimed that there was misjoinder of parties; that the sureties on the first bond should not have been joined in an action with those who signed the second. Under the view that the default of the treasurer occurred after the execution of- the second bond, the sureties on both bonds were properly joined as parties
The uncontroverted testimony in the case warranted the presiding judge in instructing the jury to return a verdict for the county and against the parties stated in the instruction. The judgment of the district court was right and is
AFFIRMED.