*1 of Harris In Re Trust Estate 660] A2d [141 Term, 1958. March 6,May Opinion 1958. Filed ap- Yandell, Page for Smith & Arthur L. Graves and pellants. Witters, Long- Brown, & Caldbeck
Kyle T. Richardson Akley appellees. moore & from the de- Shanéraw, appeal separate J. This Court, Dis- by the Probate claratory order made judgment Harris, B. Caledonia, of Luther In Trust Estate trict of re: this trustee, term of Howard, present at the Roy decided N. The decision court, questions. involves the same our specified For the reasons is conclusive here. other case entry is: opinion in that case the order probate To be Judgment order certified affirmed. court. Fidelity Company Troy American
Town of 469] A2d [143 Term, March 1958. May 6, Opinion Filed Reargument Opinion Filed June of Motion for *2 Akley Witters, Longmoore & defendant. Raymond L. Miles for the plaintiff. Granai and
C. O. Shanéraw, This is an against J. action contract surety pleaded general The defendant on a bond. denial and court, findings of limitations. trial was the statute filed, judgment entered for the to recover were $13,548.53 damages and costs. on exceptions (1) findings
The case here defendant’s fact, (2) findings, (3) supplemental failure of the court to find requested, (4) judgment appeal poses order. This questions (a) legal three law: effect of principal *3 original limiting, bond and continuation certificates as if recovery; (b) of any, application the amount of the statute case; of (c) any, to the facts and the right, of limitations if Troy portion of the Town of to recover for that of the defalca- belonging to the tions from funds Town School District. judgment of the lower court covered of defalcations Phillips Troy years M. as treasurer of the Town of C. July 1, 1942 to inclusive. The writ is dated 1955 and July was served 1955. Phillips, herein
Max Carroll referred to as M. Phillips, C. duly was elected Town Clerk and Treasurer of the Town of to, Troy, Vermont, years previous during and 1942 to inclusive. On March Mr. Phillips principal, both as Fidelity Company, surety, and American as entered into a which, in of except certain bond No. favor said town as in signatures, figures following: is words and
"Town OFFICER’S BOND ALL MEN BY KNOW THESE PRESENTS: we, Phillips Troy of Max Carroll North in the Vermont, County principal, of as of Orleans and State and the COMPANY
AMERICAN FIDELITY Washington Montpelier, County and State firmly surety, unto are held and bound as Vermont Troy, Vermont, County the Town of Orleans Vermont, Four penal sum of thousand and State dollars, paid unto the said for which municipality be truly made, payment principal well said and be administrators, himself, heirs, his binds executors and surety firmly and said binds itself and its successors presents. these March, Signed day and D. sealed this A.
THE CONDITIONS OF THIS BOND ARE SUCH
That if Max said Carroll shall well Phillips and faithfully execute the office of Clerk and Treasurer for duly municipality said for the term for he which March, day on the elected 2nd all and shall at faithfully moneys times account for all the other and possession by into things come his hands and office, faithfully virtue of his said shall well and thereof, perform singular, all pre- the duties by law, scribed so as to save in- keep harmless and demnified the municipality said and all inhabitants actions, suits, losses, thereof from damages, all costs and of anything trouble reason be omitted to done in said office, void; then this null bond shall be otherwise full force and effect is subject
THIS BOND to the following conditions: *4 1. This Bond shall in force during be and effect term may official set forth above continued an be covering any obligation or term terms for which said may officer hereafter be re-elected continuation surety payment certificates executed on of the premium, annual but the amount of this Bond shall not
by such no event continuations cumulative set the sum of the Bond as above forth. shall exceed Selectmen of said municipality 2. The Board of default, surety dishonesty notify any shall at once wrongful given the officer for this Bond is act of whom office, perform the duties of the of which or for failure any member of the Board of Selectmen shall become aware, notify so to this and a failure shall terminate surety for liability of the sub- respect Bond all sequent of the officer. acts may surety any time its
3. The terminate subsequent this Bond as to acts of the under stating officer notice when the a written cancellation any takes effect delivered member Board thirty days to the date prior Selectmen at least when may municipality effect. cancellation takes cancel surety. this Bond like notice In case of such part premium the unearned cancellation shall be returned, no is made hereunder.” if claim year, inclusive, In March of from to 1948 each defendant caused to be executed and delivered form, in the following except a continuation certificate as to signatures Fidelity of the officials of the American dates omitted, Company are viz: "Continuation Certificate AMERICAN FIDELITY COMPANY Montpelier, Vermont Bond No. 79792 premium
In consideration of the renewal Fidelity Company hereby American continues its bond subject described herein all conditions and terms the term thereof for for which the officer herein- day on after named was elected of March 3rd
415 Principal $4,000.00 Amount
MAX CARROLL PHILLIPS Troy 20.00 Obligee of Premium $ Town Principal Position Clerk and of
Treasurer express
This is executed continuation company’s condition that under said bond not and this and all continuations thereof shall the sum of cumulative and in no event exceed shall Four thousand Dollars.” accountants, made, by
An public audit was certified Treasurer, Directors, the books and of the records School Troy, library, Treasurer of the town as evidenced Town years Reports, Annual Town 1942 to 1948 inclusive. Treasurer, including The books Phillips, and accounts Mr. grand books, year question by in list were audited each Laws, according provisions town auditors of Public §3515, Statutes, 1947, No and Vermont Revision of §3593. shortage on the of Mr. part Phillips was discovered.
Following yearly is a breakdown of defalcations of Mr. during question, shortage Phillips indicating total period District, respective Town, shares of the and School rates, with the accordance voted tax as revealed an audit King May Mr. office in or June of State Auditor’s ending Year District Total Town School I 31, $$1,347.84 Dec. 1942 876.10 471.74 $ 31, 1,516.32 1,010.88 Dec. 1943 505.44 31, 1,680.00 Dec. 537.60 1.142.40 31, 1,680.00 Dec. 537.60 1.142.40 1,898.40 Dec. 756.00 1.142.40 2,116.80 Dec. 806.40 1.310.40 2,116.80 Dec. 806.40 1.310.40
$12,356.16 $7,934.98 $4,421.18 During periods Phillips said Mr. ex officio Treasurer was Troy, by of the Town School District of the virtue Town Phillips Mr. Acts of V. §4418. §2 during in the List books the entries made Grand charge is concerned. with which this case period whole Phillips technique used Mr. concealment *6 inclusive, varied, year each years 1942 to 1947 but from various exactly receipts with the ac- Totals balanced the List Grand for, discrepancies the leaving the inference clear that counted fraudulently attempts conceal totaling were deliberate for. the defalcations unaccounted receipts, represented tax year Pipe taxes of the Portland shortage represents each The Pipeline Corporation. the Company and Portland Line in the Pipe Company property Line owned The Portland Troy, years for 1942 to 1945 as real estate appraised Town of year Beginning property with the 1946 this was inclusive. by the Portland Line Pipe on the books as owned carried it on the List book Corporation. In 1948 was entered Grand erased, for PI. Exh. 9. The assessed valuation apparently but $35,100 years grand 1943 was list of the and with $351. $35,000 years it list of grand was valued at with a $350 In later year. for each Pipe the Company Pipe
The Portland Line Portland yearly its check. These checks Corporation paid Line tax against companies, taxes said less are for total assessed year, exactly yearly short- discount each and are in amount the set ages shown in the breakdown of defalcations as above as for the opinion, excepting paid forth in this however the tax $1,881.60 $2,116.80. year grand of The list 1947 was instead year for that was and the tax rate The difference $350 $6.30. King’s is reflected in Mr. audit for defalcation $235.20 year year 1947. Check for the payable was made Treasurer, Troy, Troy the order of "Town of M. C. Phillips, years The remaining checks were made Vermont.” Treasurer, Troy, Vermont, Phillips, M. C. payable "Town Troy, Vermont.” grand Pipeline list of the Company Portland Pipeline Corporation not Portland was included town, years question,
Grand List Total thereby not reflected in the total for which Mr. property taxes Phillips was account. year listing no List Book for the 1948 shows
The Grand on line where Pipeline Corporation of the Portland appear, corporation alphabetically of this would an name erasure, though year in that property even it owned obvious $35,000 $2,116.80 net which was paid. at with a tax valued pattern mistotaling or omission of entries varied While extent, year the net result for each same. to some Troy The Selectmen of the Town of first learned of years through the time of the shortages for the May by Mr. on or about 1954. On June King, audit given to the of said short- 1954 written notice was defendant No made the defendant ages. prior demand was July on bringing this action fairly guaranteeing
It is well settled that bonds fidelity employees, profit if and in the of officers and written for therefor, essentially are insur course of business undertaken such. contracts are construed as Town ance *7 426, Co., 428, 112 v. Standard Accident Insurance Vt Windsor Jur, Banks, 156, §210; 83; 7 ALR2d 948. 429, 26 A2d 7 Am contracts, insurance, of like other must Contracts reasonable, interpretation, fair consonant practical, receive and object of intent Strained apparent parties. and with to constructions of insurance contracts are be avoided. or forced Co., 114, 121, 117 85 Enosburg Falls Ins. Vt A2d v. Hartford Insurance, Jur, 577; Am29 §158. strictly is to language of be construed policy a to insurer, although entire be con contract
against to together giving force effect each purpose strued for of and uncertainty to Equivocation and are be resolved clause. against If clear un and the insurer. and
favor
insured
given
effect.
ambiguous the
must
force and
Allen
provisions
be
474-5,
Co.,
471,
A
Fire Ins.
105 Vt
168
v. Berkshire Mutual
460,
698,
Abraham v. Insurance
89 ALR
and cases cited.
670,
America,
29
84 A2d
ALR
Company North
117 Vt
of
not
and
such as
The construction must be reasonable
2d 783.
unambiguous provi
of an
the insurer of
deprive
benefit
Abraham v. Insurance
protection.
therein for its
placed
sion
America,
Corsones,
Company
supra, citing
North
v. Monarch
of
379, 381, 154
Co.,
Accident
A 693.
Ins.
Vt
general
is the
rule
terms of a contra ct
It
that when the
ambiguous
fairly
of
or
of
insurance are
two different
susceptible
constructions,
most
adopted
that construction will be
insured;
it is equally
favorable to
however
well settled that
insurance,
contracts,
other
contracts of
like
are
be construed
according
meaning
the sense
of the terms which
and
used,
they
parties
plain
unambiguous,
have
and if
are
their
sense,
ordinary
plain,
terms are to be taken in
popular
their
Company
America, supra,
Abraham v. Insurance
North
page
citing
Casualty Co.,
Johnson
v. Hardware Mutual
269, 277,
A
788.
There can be no doubt that
contract of
a
insurance
when,
only when,
is ambiguous
reasonably
fairly
it is
or
of different
susceptible
constructions.
It has been
said
aptly
meaning
mere fact that the
have
parties
differed as
policy
the terms of a
not
ambiguous.
does
make it
Other
ambiguity by
wise the mere assertion
suing
a
would
always
ruling
ambiguity.
result
Such of course is not
the law. United
Ringsdorf,
Services
Ins. Co. v.
Mun
D.C.
Life
91 A2d
App,
citing
Equitable
Hall v.
Assur. Soc.
Life
S.,
U.
Mich
anbiguity
What effect the bond and continuation cer- *8 liability? limiting tificates as question The basic whether of a insuring fidelity renewal bond or contract of an officer or employee surety affects the limit of depends primarily upon the facts and circumstances surround- ing both, the execution of language and the in- used in the struments. Both of these groups elements furnish such a scope wide to construction as have resulted differences opinion, frequently the courts They have pointed this out. times indemnity have at construed bonds and renewals as separate contracts, surety and distinct on is each of which the to hable the limit set therein occurring during for defalcations the term each is force. hand, representing
On other is what sometimes said authority, to be at least the weight numerical there are many decisions that a bond and the thereof to renewal are be continuing contract, construed as a which in the same manner life policy, as a insurance in force the payment continued premiums. annual
Whether a bond and continuation certificates are separate construed as single continuing contracts or a one is not of controlling importance. nothing There is inherent ordinary fidelity nature of an contract and renewal transacr tion compels aggregate liability conclusion that shall penalty be limited to the original instrument. However specific provisions may have this effect. It becomes important, therefore, language examine the the instruments which this action is predicated light construe them the of the principles set forth opinion. Annotation, in this See ALR2d 946.
By way of aid in the construction of the bond and con- tinuation consideration, certificates under the words "con- tinue,” "Continuation,” "cumulative,” must given all be effect. pivotal
When a word is not defined either in the policy or the application it permissible for the court to take judicial notice its meaning given works, in standard such as dictionaries. Abraham v. Company Insurance North America, supra, citing New York Calhoun, Ins. Co. v. Life F2d 896. Dictionary
Webster’s New Modern defines "continue” as carry "to in; on without interruption; persist remain; abide; endure; persevere.” Webster’s Dictionary International Sec- Edition, ond defines it permanent durable; as "to be endure; to Phrases, last.” In Words And Edition, Permanent page Vol. the phrase continue”, "to to keep "means on.” *9 in New International is defined Webster’s
"Continuation” continuing, being or state Dictionary or state as "act succession; continued; prolonga- or extension uninterrupted tion; propagation.” Dictionary defines "cumula- New International
Webster’s force; increasing by giving or successive "augmenting tive” as Phrases, Edition, And Permanent In Words Vol. additions.” aug- is defined as "that which page "cumulative” 10 at else; addition; something in by that is added law ments evidence, facts, arguments.” or In augments Webster’s that Dictionary, verb "cumulate” transitive New International heap together; or throw into a gather heap; "to is defined as peti- applied The word "cumulative” as to accumulate.” meaning evidence trial defined as "additional tions for a new State, to the same Bradish v. point.” of the same kind Vt Paltiel, 510, 512, in v. 175 A cited Blanchard Dictionary Law defines "cumulative” as "Ad- 226. Black’s ditional; increasing; forming aggregate. heaping up; an The things together are to added signifies word that two instead being or substitution of the other.” repetition of one "may it The be continued” part provides bond * * * * * * "on payment "continuation certificates” * * * this "the amount of bond shall not premium,” annual in no event such continuations be cumulative and shall exceed * ** sum of the bond” original Certificates refer to the bond Continuation number, "in stating part, consideration of the renewal * * * * * * "continues its company bond sub- premium” * * * ject terms thereof” "This con- to all the conditions and express tinuation executed condition that liability under bond this Company’s said and all continua- tions thereof shall not be cumulative and shall in no ex- event * * * Four ceed the sum of Thousand Dollars” provision express
It has become well settled that fidelity in either a bond or contract or a renewal in inserted contract, strument, continuous ap considered as a and made both, periods of effectiveness of the extent of plicable may Bonding American be determined limited. Co. Morrow, 613, 615; Fidelity v. 80 Ark 96 SW United States Barber, 220, 226; Guaranty Michigan Mortgage- & Co. F2d Corp. Employer’s (1928) Invest. v. American Ins. Co. 244 Mich *10 140; Fidelity Guaranty 221 NW Pearson v. United States & Co., 919, 920; (1933) Minn 164 NW Nowell v. Monroe 648, 171 177 Ga SE 136.
Reference to the cases cited in the in. plaintiff’s brief years in support of its claim that there was force for each of the question $4,000., in in sum a bond the absence of the "not words be cumulative” similar words is noted. For reason, other, this if no distinguishable cases cited are from this case.
Having in foregoing principles, mind the the plain, and ordinary, popular language sense of the used bond certificates, together, and continuation considered com- we are pelled to the liability conclusion that the is defendant’s limited $4,000. July 1, the sum of and interest from 1955. In ar- riving at this conclusion recognized we are not unmindful of the fact primary object is insurance to insure. In- surance, by complexities business, reason of the present day requirements of the individual and the has public, de- into veloped specialized a field. It is common knowledge that by such attorneys, officials, contracts are prepared company or, by experts phase least this of our economic life. Such companies, including agents, local advertise their competence case, advise and serve. In this particular practical all purposes, the payment by town, of additional premiums after the exhausted, maximum limit of afforded no protection to the town. provisions
Pursuant to the (P. of V. S. L. §3593 3515) force when the place, defalcations took town auditors required were adjust to examine and the accounts of all town officers, and, and town school by district following section report their findings legal to the voters of the town. This was done. Acts purport by to have been done officers public in their capacity, official and within the duty, of their scope presumed will be regular have been and in accordance with authority. their Townshend, Town Manchester v. Town 136, 143, Vt A2d 207. specialties that actions on provides 1686 of S. 47
Section V. years the cause of action brought eight after within shall be modify purports accrues, not after. Sec. 1703 §1686 providing: bring personal entitled to action person
"When
doing
so
the fraudulent conceal-
from
prevented
against
the person
of such action
ment of
cause
lies,
discovery
of such
period prior
it
whom
time
determining
excluded
of action shall be
cause
of such
for the commencement
action.”
limited
(cid:127)
merely declaratory
It
seem that
would
§1703
court, enacted,
be,
law,
may
this
it
recognized
common
removing any
from
implied
doubt
purpose
Estate,
v. Muttiken’s
115 A
decisions. Watts
fact,
findings
From
it cannot be said
evidence
*11
any
discovery
shortages prior
to the State
there was
actual
by
urged
in 1954.
It
the defendant that knowl-
audit made
edge
by the
in the exercise of
plaintiff,
proper
of facts
diligence
and
would have enabled the auditors of the
prudence
discovery,
equivalent
to
of the fraud is
to
town
learn
that
time,
to run from the
the
the statute commenced
when
diligence, the
ought
use of reasonable
defalcations could or
Even in
this
have
discovered.
CJS 189.
cases where
been
general
failing
rule
to discover the cause of
must
applies
action
134,135.
from the facts of each case. 34 Am Jur
be determined
the
Defendant contends that
statute
limitations has run
action,
against plaintiff’s
except for the causes which arose
1,1947,
ip
July
assigning
part, the
after
claim that failure of the
errors
town
to discover the
found to have been made
auditors
years
inclusive,
shortages existing for
1942 to
both
prudence
diligence on
part
due to lack of
the
was
said
year by
An
each
auditors.
audit was made
auditors
Treasurer,
Phillips
books
of Mr.
as Town
in-
and accounts
cluding the
fist
grand
books.
books and records of
year Treasurer were likewise audited each
certified public
Shortages
King,
not
until
accountants.
were
discovered
Mr.
Office,
Auditor’s
representing
State
discovered
defalca-
selectmen were not
May
Until then the
tions about
1954.
which,
aware,
following
notice
shortages,
nor informed of said
18, given to the
June
defendant
effect
on the
emphasis
considerable
places
Defendant
or
findings by
"error becomes manifest”
the court that the
manifest”,
clear,
or
(meaning
plain,
apparent).
"errors become
mind
use of the
evidently,
findings,
its
had in
The court
past tense.
quoted
present,
their
rather than
above
words in
evidence,
fact,
findings
indicating,
so
or
In the absence of
a
that the town auditors were
cannot hold as matter
law
we
shortages,
as such a con-
negligent for failure to discover
by the
or
as found. The
supported
clusion is not
evidence
facts
requested finding,
declined to make such
which the
court
suggests,
at
The defendant
least
excepted.
defendant
inference,
knowledge
im-
Phillips’
Mr.
of defalcations is
effecting
tolling
of the statute of
putable
as
this
do not
view.
limitations. We
subscribe
regarded
trustee
Phillips
constructive
Mr.
Jennings Gallagher,
169, 174,
v.
misappropriated.
funds
Vt
802;
Delligan,
A
action 470, 27 NW Hollister, Mich Thompkins relation. v. business 651, or, short, duty of the defend- any it is the case where theOn of trust or confidence.” ant to make known a breach Savings subject see Hall v. Windsor of the statute of limitations 593; Bailey 125, 136, 137, A Bank, A Co., A2d 178. Mfg. Groton 113 Vt has of limitations contention that the statute Defendant’s action, the causes which except run for against plaintiff’s July 1, 1947, arose after is untenable. funds of the misappropriated
In of the fact that the view there liability ($4,000.), town exceeds the limit of defendant’s liability arising any is no occasion for a consideration the Town School belonging of the reason defalcation of funds District. recover Judgment Judgment reversed. for July ($4,000) Thousand interest
Four Dollars with from and costs.
Holden, to concur with dissenting. I unable am the defendant’s part majority measures opinion which cumula- against responsibility imposed total the condition of law and liability. my tive It is principles view that sound by this justice liability to restricted prevent the defendant’s device. during undertakings the defendant successive in con-
period through of this action 1948 form the basis written, fur- undertakings tract. Each of the were several statutory nished, of our to the demand approved response fidelity relating law bonds to town The issuance officers. protect citizenry performance town and its governed during duties of town officers V. period 47, §3533. directors, con-
This provides: section "Before the school treasurer, stable, taxes, clerk commissioner, road collector offices, of their and overseer of the the duties poor enter the selectmen conditioned require give shall each to a bond directors, to duties; performance faithful the school of his the town. district; the town school the other officers named *13 425 required give a bond shall also be treasurer and collector The for All such bonds purpose. like the town school district pre- sufficient sureties as in sums and with sufficient shall If the selectmen by the selectmen. and approved scribed insufficient, any such officer to be any time consider a bond order, give officer an they may require, such ad- written they necessary. in sum as deem to such town such ditional bond treasurer The clerk and are measured duties town intervening the town of time between annual point period the term of office of these meetings. period This constitutes 47, I, §3509, II. town officers. V. statutory requirement, princi- the duties of the
Under the surety geared to pal obligation principal’s of his are the and official, defaulting term of office. entered Phillips, to which he was elected with each suc- the duties of office meeting period through from 1937 cessive town over original its certificates are The bond and several continuation term for penal specific written sum $4000 elected, of his principal ensuing which the from the date year. meeting particular election at the town for that obligations, The the defendant for each of written years, ordinary undertaking be- express these no contractual They private to a concern private parties tween contract. public, separate undertakings in which State and the written, generally, contracts were had an interest. The accepted, public secure a trust. premiums paid and requirement statutory They were to fulfill the undertaken State, statutory legal of the constitute bonds law sense. by fidelity rights bonds issued liabilities created entirely statute not fixed response mandate are statutory undertaking must writing A contract. given according wording effect
he considered and Surety Company v. requires law that it. American Gaskill’s Admr., 358, 365, 218; 82 A United States use Hill v. Co., 168, 437, 440; 197, L Surety US 26 S Ct 50 Ed American Fidelity Poetker, Guaranty Ind 102 NE US Co. v. dismissed, L appeal 235 US 35 S Ct Ed
423;
Metropolitan Casualty
Co.,
Bank v.
First State
Insurance
1256, 1263;
City
98 ALR
Tex
79 SW2d
Charles
*14
841,
137,
Rasmussen,
638, 642;
210 Iowa
232 NW
72 ALR
572,
People,
549, 553;
Ill
Ramsey’s
People
Estate v.
64 NE
Surety Co.,
99, 101;
Metropolitan
NY
105 NE
v.
Williams,
v.
Mich
89 ALR
Williamson
NW
CJS,
443;
Officers, §161, a,
456;
Jur,
see also 67
Am
p.
Officers, §406, p. 180-181.
Public
47, §3533,
amendment,
S.
before and after the 1949
re-
V.
quires
designated
the elected officials
to furnish a new bond for
office,
term of
"conditioned for
performance
the faithful
each
47, §10,610,
Form
of his duties.” V.
the
prescribes
form
fidelity
substance
bond furnished to protect
the trust
treasurer. The condition
public
specified
of a
of the bond is
the
execution of the
faithful
office and the
faithful account
moneys
other
for
matters which come
all
into his hands and
office,
virtue of his
possession
during
ensuing
the
term.
require a
These statutes
bond conditioned on the
per-
future
non-performance during
formance or
the term he is about to
Baldwin,
enter. See State
116 Vt
It is of course true that the statute entrusts a discretion to the selectmen to fix the penal sum of the bond to be furnished they specifying to do purported This term. for each by the undertaking written annual penal sum of each $4000 cognizant that then the selectmen were Whether defendant. might reduce condition effect of the restrictive legal controlling security importance is not of bond to a worthless right no the defendant statutory gave The bond. statute the select- gives statute penalty. to offer a bond without a accept it. right approve men no purpose limitation defeats this conditional
Since invoked, in written, it not now be should which the statute was very law, destroy protection good good conscience or regard I the limitation to furnish. compensated defendant requires of one undertaking the State impairment to be an condition trust. Such a engaged public to secure a who has Hadfield, 192 Ark or effect. Jones v. legal no force should have *15 488, 494; American 224, 959, Lawrence v. 109 ALR 96 SW2d 535, 540; 3, Lime Co., 586, 88 ALR Surety 263 Mich 249 NW 607, ALR 146 So County Montgomery, v. 226 Ala stone 164, 167. to protect the State to exact a bond
The power not frustrated execution of a trust should be public accepted is offered and wording of the indenture which underlying statutory principle is the safeguard. This Admr., supra, 85 Vt Surety N. Y. v. Gaskill’s American Co. of by the 364, 365, 221. The facts determined 82 A at here, in- to require its maintain application court trial obligation. true tegrity of the defendant’s majority on the agreement application with the I am of Limitations. the Statute no that position the defendant’s
I in accord with am undertakings for the conversion to its several attaches to the town school district. belonged of tax funds that corporate en- separate the town school district are town and 529; 563, 564, 80 A2d Pittsford, 116 Vt tities. Dickerman 12; Troy 75, 78, A Graded Haley, 100 North Farmer v. Vt The statute Troy, 66 A 1033. School District v. Vt dis- to the school requires separate from the treasurer bond is not in suit. trict and such a bond I believe the should
Upon these considerations $7934.98, principal in the amount of with judgment have July 1955. interest from Rearguimemt
On Motion For motion Shan^raw, presented plaintiff’s J. The points summarized as follows: reargument are bond, of the it is claimed Having purposes in mind 1. wording from the letter and depart the court declined that carry thereby out the intent of the of the failed bond say language To this it is sufficient that the used parties. . If clear and in the bond and continuation certificates clear. unambiguous given are force and effect. provisions Co., 471, 474, 475, Ins. Allen v. Berkshire Mutual Fire fraud, negligence ALR In the absence of or 168 A 460. established, faith, duty alleged it is not the of the bad court to read into contracts conditions limitations which not Johnson v. Hardware Mutual parties have assumed. Co., 269, 281, 282, 187 Casualty A 788. 108 Vt 47, §3533, urges 2. Plaintiff that as amended V. part No. 73 of the Acts of should be construed as phase fully dissenting opinion bond. This discussed fully expressed of Justice Holden the views therein con- sidered all members court. question It is in also claimed that case in field, is, segregated pro-
distinct and the field of public passes Legislature protect tection wherein the a law *16 further, and, public, paramount wording that the law is 47, §3533, of the bond. We direct amend- attention V. as 1949, which, No. of the Acts of in part, provides ed that:
"All such bonds shall be sufficient sums and with prescribed sufficient sureties approved selectmen.” contracts, duty
It is
of the courts
construe
not to make
Casualty
them for the
v.
parties.
Johnson
Hardware Mutual
Co.,
established,
supra.
rights
must be
if
all,
continuation
against this
under the bonds and
defendant
some
surety,
not under
on
the latter
certificates
given. Windsor might
ought
to have been
bond which
The motion contains new heretofore Let reargument appears. The motion denied. ground No entry go down. full Motors, Inc. Birchard James W. Batch elder v. A2d 298]
[144 Term, January Opinion Filed March July Reargument
Opinion on Motion for Filed plaintiff. Cooper R. Lawlor for the defendant.
Parker & Ainsworth