Avery County v. Braswell
| Decision Date | 22 March 1939 |
| Docket Number | 233. |
| Citation | 1 S.E.2d 864,215 N.C. 270 |
| Parties | AVERY COUNTY et al. v. BRASWELL et al. |
| Court | North Carolina Supreme Court |
Civil action to recover on bond of defendants, J. D. Braswell, and his surety, damages alleged to have been sustained by reason of malfeasance of county accountant of Avery County, heard upon demurrer to complaint.
The plaintiffs make substantially these allegations:
1. That plaintiff, Avery County, is a municipal corporation organized and existing for governmental purposes, under the laws of the State of North Carolina, and that the co-plaintiffs are and constitute its Board of County Commissioners.
2. That on 3 December, 1934, defendant, J. D. Braswell, was appointed to the office of, and qualified as, and entered upon the discharge of the duties of county accountant of Avery County to serve at the will of the Board of Commissioners of said County, or until the appointment of his successor; that he executed and filed a bond in the sum of five thousand dollars, payable to the State of North Carolina, with defendant American Surety Company as surety, conditioned upon the faithful performance by him of all the duties of such office; that he served as such county accountant until 1 January, 1937, at which time he was reappointed and qualified for a further period with another surety, to which the action of State of North Carolina ex rel. Avery County et al. v. J D. Braswell and Fidelity & Casualty Company of New York N.C., 1 S.E.2d 870, relates.
3. That on 8 September, 1933, plaintiff, Avery County, by and through its Board of County Commissioners, entered into a written contract with Bray Brothers Company, which was approved by the Local Government Commission of North Carolina, relative to the issuance of $149,000 "Avery County, North Carolina, Funding and Refunding Bonds", to be exchanged for outstanding indebtedness of said County "in the form of bonds and notes of a like or greater face amount", by the terms of which contract Bray Brothers Company, in addition to preparing a financial statement of the county and a plan for readjusting the county's indebtedness and submitting same to the bond and note holders, agreed: (1) To do, at its own expense and cost, all things necessary and required by law for the completion and approval of said bonds, for which the county agreed to pay it an amount equal to 1 1/4 per centum of the par value of said bonds, payable $300 in cash and the balance when the bonds are completed; and (2) to use, at its own expense and cost, its facilities and best efforts to effect an exchange and to make exchange of said bonds, through and subject to the Local Government Commission of North Carolina.
4. That Bray Brothers Company did all things necessary for the preparation of the said $149,000 Avery County, North Carolina, Funding and Refunding Bonds, which when completed and executed by Avery County were deposited with the Local Government Commission of North Carolina for the purpose of exchange as planned, for which, under the terms of said written contract, it was entitled to receive $1862.50, that is 1 1/4 per cent of the par value of said bonds; and that further pursuant to provisions of the written contract, Bray Brothers Company effected the exchange and delivery of only $59,000 of said bonds for which, under the terms of said contract, it was entitled to receive the further sum of $442.50, or 3/4 of 1% of the par value of the bonds so exchanged, making a total of $2305 due for all services rendered under said contract. That the remainder of the bonds have been returned to Avery County, and, by reason of expiration of time limit for delivery, are now of no value.
The complaint further alleges:
Upon the allegations, plaintiffs pray judgment against J. D. Braswell in the sum of $3500, and against defendant American Indemnity Company in penal sum of the bond to be discharged upon payment of $3500, and for costs.
Defendants demurred to the complaint for that it fails to state facts sufficient to constitute a cause of action against them or either of them jointly or severally.
From judgment overruling the demurrer, defendants appeal to the Supreme Court and assign error.
Byron E. Williams and Robertson Wall, both of Newland, and Harkins, Van Winkle & Walton, of Asheville, for appellants.
Charles Hughes, of Newland, for appellees.
Does the complaint state a cause of action? On this question, we are in agreement with the ruling below.
It is generally held in this jurisdiction that, by demurring, a defendant admits as true every material fact alleged in the complaint. Both the statute and our decisions require that the complaint be liberally construed and every reasonable intendment and presumption must be in favor of the pleader. The complaint must be fatally defective before it will be rejected. C.S. § 535; Commerce Ins. Co. v. McCraw, N.C., 1 S.E.2d 369, and cases there cited.
22 R.C.L. 461, Public Officers, Section 124.
Where a public officer is required to give a bond for the faithful performance of the duties pertaining to his office, the engagement of the surety executing the bond rests on the same legal obligation as is imposed by law upon the officer himself. Whatever is a breach of the conditions of the bond as regards the officer is equally so as to the surety. A bond for the faithful performance of official duty is as binding on the principal and his sureties as if all the statutory duties of the officer were inserted in it. 22 R.C. L. 497, Public Officers, Section 176.
The office of county accountant was created under, and the duties pertaining thereto are prescribed by and...
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