First Nat. Bank of Brandon v. Briggs' Assignees

• Decision Date: 31 May 1894
• Citation: 69 Vt. 12,37 A. 231
• Parties: FIRST NAT. BANK OF BRANDON v. BRIGGS' ASSIGNEES.
• Court: Vermont Supreme Court

37 A. 231

69 Vt. 12

FIRST NAT. BANK OF BRANDON

v. BRIGGS' ASSIGNEES.

Supreme Court of Vermont. Rutland.

May Term, 1894.

Exceptions from Rutland county court; Munson, Judge.

Application by the First National Bank of Brandon against George Briggs' assignees for the allowance of a claim arising from the insolvent's suretyship on the official bond of claimant's cashier. It was adjudged that the action might be maintained, and defendants except. Reversed.

J. C. Baker, for plaintiff.

Stewart & Wilds, for defendants.

MUNSON, J. The plaintiff is a corporation organized under the national bank act. Its board of directors was empowered by that act to appoint a cashier, and dismiss him at pleasure, and to prescribe by-laws, not inconsistent with law, regulating the manner in which the cashier should be appointed. A bylaw was adopted which provided that the cashier should be appointed to hold his office during the pleasure of the board. The insolvent's first election as cashier was for the year ensuing, and he was thereafter for 10 years annually re-elected. Soon after his first election, he gave the bond in controversy, which is conditioned for the faithful discharge of his duties as cashier forever, so long as he should occupy the position. The defaults complained of occurred after the expiration of his first official year.

We are not aware that the precise question raised by this statement has been passed upon, but a review of the course of decision by which courts have arrived at what must now be regarded the settled law upon the subject of official bonds will aid us in the disposition of the case. In Lord Arlington v. Merricke, 2 Saund. 411a, the delinquent was a deputy postmaster, who was originally appointed for six months, but whose bond was for and during all the time that he should continue in the office. The time for which he was appointed was recited in the condition, and it was considered that the terms of the obligation must be held to refer to the recital, and that the liability was thereby limited to six months. In Waterworks Co. v. Atkinson, 6 East, 507, there was a recital in the condition of the bond that the defendant had agreed with the plaintiff to collect its revenues for 12 months, and the condition was that the defendant should justly account during the continuance of such his employment, and for so long as he should continue to be employed; and it was held that the obligation was confined to the 12 months mentioned in the recital. These cases are authority for saying that, when a definite period of appointment is recited in the condition, the obligation will not be extended beyond that period by any subsequent general words. In Wardens of St. Saviour's v. Bostock, 2 Bos. & P. (N. R.) 175, it was shown by the recital in the condition that the principal was appointed collector of the church rate of the parish, but the period of appointment was not stated. It appeared from the replication that the first appointment was for one year, and that the incumbent was continued in office by annual reappointments. The office was apparently an annual one, by virtue of the local act under which the rates of the parish were managed. The bond was upon condition that the collector should from time to time account for all moneys received by him on account of the rate assessed, or of any other rates which might thereafter be made and collected by him. The court considered that the case could not be distinguished from that of Waterworks Co. v. Atkinson. In Peppln v. Cooper, 2 Barn. & Aid. 431, the condition recited an appointment as collector of land taxes under an act of parliament, but the term of appointment was not stated. The condition of the bond was to account for moneys received at all times thereafter. The court held that these words must be construed with reference to the recital and the nature of the appointment therein mentioned; and that, inasmuch as the fact that the appointment was an annual one could be learned from the act of parliament under which it was made, it was unnecessary to state that fact, either in the bond or in pleading. These cases are authority for saying that, when the appointment is for a definite period fixed by law, a recital of the term in the bond is not necessary to limit the effect if general words which in themselves would indicate a continuing liability.

The above cases, and others of the same holding, were reviewed by this court in Treasurer v. Mann, 34 Vt. 371; and it was then considered upon their authority to be perfectly settled that when the appointment is for a limited period, which is recited in the condition of the bond, or, if not recited, is fixed by law, the liability will be confined to the period named in the condition or fixed by law, although the language of the condition is general and unlimited. In that case the delinquent was the director of a bank by whose charter the office was made annual. Acts 1842, p. 107. At his first election he gave a bond conditioned to secure the due performance of his duty as director while he should continue in the office, and gave no bonds when subsequently re-elected. The bond was held to cover the defaults of the first year only. It is sufficient to say that the authorities in this country are entirely in accord with this decision. Kitson v. Julian, 4 E1. & B1. 854, covers ground in advance of these cases. In that case the delinquent was appointed an officer of a private corporation, and gave a bond conditioned to account for all moneys collected by him "from time to time, and at all times so long as he should continue to hold the said office or employment." The bond contained no recital of the period for which he was appointed. The plea averred that the appointment was for one year from a day named. The replication averred that the appointee continued in his employment, with the assent of the defendants and the company, after the expiration of the year. It was held that, inasmuch as the condition of the bond recited the appointment, it was to be assumed that the extent of that appointment was known to the signers of the bond, and that they contracted with reference to it. This case is authority for saying that general words will not extend the liability beyond the term of the appointment named in the recital, although the extent of the appointment is neither given in the recital nor fixed by law.

It is not to be understood, however, that words may not be used in the condition sufficiently specific to extend the liability beyond the time of the original appointment. But, to have this effect, the words must be such as clearly to indicate that the parties contracted with reference to a further liability. In Hassell v. Long, 2 Maule & S. 363, the officer was a collector of taxes imposed by act of parliament, and the condition was to account for moneys received on any tax then imposed, or...