44 Iowa 15 | Iowa | 1876
The bond recites that said Maynard has been elected collector for Bloomfield township. The answer avers that “ said Maynard refused and neglected to qualify as collector pursuant to the election or otherwise, and refused and neglected to file the said bond and have the same approved as provided by law, and the said office became and was as pro
It is claimed by the appellee that it does not appear from the record that the bond was made before the appointment. We think, however,- that as the bond purports to have been signed by the sureties for Maynard as an elected officer, and as it is stipulated that they signed! it for him as an elected officer, it will be presumed in the absence of any other evidence that "the bond was signed before the appointment, and before the office to which Maynard yras elected was declared vacant.
It is also claimed by the appellee that it does not appear certain that the office was in fact vacant. We might concede, indeed, that it would not'become vacant by the declaration of the supervisors that it was vacant. No presumption of regularity can create authority. But in the absence of any evidence showing that Maynard qualified as an elected officer, and with the positive evidence that he was appointed after the supervisors supposed that the office had become vacant, we think the presumption is, that the office did become vacant.’ The township trustees had power to appoint if there was a vacancy, otherwise not. The act of an officer which may have been within his official powers will be presumed to have been regular and within his powers, in the absence of all evidence to the contrary. While, therefore, the sureties signed the bond for Maynard as an elected officer, the plaintiff seeks to recover on it for his defalcation as an appointed officer. To this the appellee replies that the objection to the recovery-is merely technical; that the officer is the same and the term of office the same; that at all events it covers the same period of time so far as it covers it at all, and that the sureties cannot justly complain. The obligation of a surety is, however, strictissimi juris. He cannot be held upon a contract on the plea that it is substantially the same or less onerous. This proposition admits of no controversy. The difficult point in this case is to determine whether the obligation which the
But the bond was signed for Maynard as an incumbent of an office which became vacant. On this ground we think the bond should be considered as discharged. Maynard had no power .to hold it against the contingency of his appointment. If Maynard had qualified in pursuance of his election and resigned, it would hardly be claimed that the bond could be tided over a vacancy and revived under an appointment.
On the occurrence of the vacancy, then, the sureties had a right to assume that they were no longer liable, and although Maynard was afterwards appointed, they had a right to assume that they had no occasion to examine his accounts while in office, or take measures to protect themselves against his defalcations after his office had expired.
We are of the opinion that the Circuit Court erred in rendering judgment against the sureties, and as to them it is
Reversed.
