63 Wis. 381 | Wis. | 1885
The only objection taken to the complaint is that the bond in suit runs to the supervisors of the plaintiff town, instead of “ the town by its name,” as required by sec. 810, R. S. It is not contended that the bond is not valid, as a voluntary obligation, and, indeed, since the decision of this court in Lewis v. Stout, 22 Wis. 234, such a position cannot be successfully maintained. It was there held that, although the statute required that the bond upon which the action was brought should be executed to the state, yet it was binding upon the sureties as a voluntary obligation, notwithstanding it ran to the governor of the state. In the opinion by Dixon, C. J., numerous cases are cited in support of the ruling, and it is said there is no case to be found holding the contrary doctrine. See, also, Klauber v. Charlton, 45 Wis. 600.
The learned counsel for the appellants maintains, however, that although the bond may be valid as a voluntary obligation, it is not a good statutory or official bond, and hence not within the statute (R. S. sec. 984) which provides that an action for the breach of the official bond of a town officer shall be brought in the name of the town. He maintains that if the instrument is merely á voluntary obligation, the obli-gees named therein, the supervisors, are trustees of an express trust, — the town being the beneficiary, — and hence that an action thereon must be brought in the name of such supervisors. Such was the rule at common law, but the Code has established a different rule. Now every action must be prosecuted in the name of the real party in interest, except a trustee of an express trust may sue without joining with him the person for whose benefit the action is prosecuted. R. S. secs. 2605,2601". This bond was given for the benefit of the town, and the town alone is interested in an action to recover damages for a • breach of its conditions. Under repeated decisions of this court, the town may maintain such action. Some of the cases which so hold are cited by
There was formerly some doubt as to whether the rule extended to contracts under seal, but that doubt was removed by the judgment in McDowell v. Laev, 35 Wis. 172, where the beneficiary was allowed to maintain an action in his own name alone, upon a sealéd agreement or covenant made by the defendant with a third person. Bassett v. Hughes, 43 Wis. 319, holds the same rule. In each of the above cases the contract or covenant was made with a third person who, in respect thereto, was “ a trustee of an express trust,” as that term is defined in sec. 2607, R. S. Conceding, therefore, that the bond in suit is not an official bond within the meaning of sec. 984, still it results from the views above expressed that the town may maintain this aetion in its own name.
But we think this is an official bond, and the action is properly brought by the town under the section last cited. It was executed by all the parties to it with the intention and for the purpose of completing the qualification of the principal as town treasurer, so that he might lawfully receive and hold the funds of the town, and to secure the town from loss in case of any misappropriation thereof. It was accepted by the town with the like intent and purpose. On the faith of it the tax list of the town was placed in the hands of the treasurer, and the warrant, by virtue of which he collected the taxes and thus became possessed of the money of the town, was issued to him. The condition of the instrument is that prescribed by the statute. It contains nothing prohibited by the statute. A bond to the supei’-visors is not forbidden, nor is it declared void; and there is no principle of the common law which makes it so. It is neither immoral nor illegal. The subject matter thereof is sufficient, and the parties were competent to contract with reference to it. Lewis v. Stout, 22 Wis. 234. It was thus
In any view of the case, we think the complaint states a cause of action in favor of the town, and is well brought by the town alone. The order overruling the demurrer to the complaint must be affirmed.
By the Cov/rt.— Order affirmed.