Bd. of Educ. of Preston Indep. Sch. Dist. No. 45 v. Robinson
| Decision Date | 12 November 1900 |
| Citation | 84 N.W. 105,81 Minn. 305 |
| Parties | BOARD OF EDUCATION OF PRESTON INDEPENDENT SCHOOL DIST. NO. 45 v. ROBINSON et al. |
| Court | Minnesota Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Fillmore county; Nathan Kingsley, Judge.
Action by the board of education of Preston Independent School District, No. 45, of the town of Preston, against George W. Robinson and others. Judgment for plaintiff. From an order denying a new trial, defendants appeal. Affirmed.
Syllabus by the Court
1. It is no defense to an action on an official bond that the sureties signed and executed the same upon the express condition that other persons should be procured to sign before delivery, and that the bond was delivered without a compliance therewith, unless the obligee had notice of such condition.
2. One of the officers of plaintiff school district undertook to solicit and procure persons to sign and execute as sureties the bond of the treasurer thereof, and in doing so obtained information concerning the conditions above mentioned. Held, that such officer was not then acting in his official capacity, and plaintiff was not bound by his acts, or by information coming to him while so acting.
3. A county treasurer, having funds in his hands belonging to plaintiff school district, delivered a bank check therefor to the school-district treasurer upon a bank which was at the time engaged in the usual and ordinary banking business. The school-district treasurer accepted the check, presented it to the bank for deposit to his own credit, and received credit therefor on the books of the bank. Held equivalent to the delivery and receipt of the money by and from the county treasurer.
4. Where a person holds a public office for two or more successive terms, and executes a new bond, with new sureties, for each term, and a defalcation occurs on the part of the officer, the sureties on the bond given for the term during which the defalcation occurred are alone liable.
5. Prima facie the sureties on the last bond are liable for such funds as are properly chargeable to the officer, as shown by the books of his office at the time of his retirement, and the burden is upon such sureties to show that the defalcation in fact occurred during a prior term.
6. Evidence held to sustain the findings of the trial court. B. F. Fowler and Childs, Edgerton & Wickwire, for appellants.
H. S. Bassett, for respondent.
On August 7, 1897, defendant Robinson was elected treasurer of plaintiff school district for the term of one year. He duly qualified as such, and discharged the duties of his office during his term. On August 6, 1898, he was re-elected to such office as his own successor, and executed and delivered to plaintiff the bond on which this action is founded. The other defendants executed the same with him as sureties. In August, 1899, H. R. Wells was duly elected as Robinson's successor, duly qualified as such, and demanded of him the money, books, and papers belonging to the office. Robinson failed to pay over to Wells the sum of $1,367.68 belonging to the school fund, and this action was brought against him and his sureties to recover it. Plaintiff had judgment in the court below, and defendants appeal from an order denying a new trial.
1. One of the defenses interposed by the defendant sureties is that the bond in question was signed and executed by them upon the express condition that certain other persons should be procured to sign the same before its delivery to plaintiff; that such other persons were not procured; that the bond was wrongfully delivered, and in consequence never took effect as their obligation. It is undoubtedly the law that if a surety sign a bond of obligation of the nature of the one here under consideration, upon the express condition that the same shall not be delivered until certain others shall be procured to sign and execute it also, and such condition be brought to the knowledge of the obligee before delivery, the delivery, without a compliance with such condition, is ineffectual to give validity to the bond as to such sureties. But such condition must in all cases be brought to the knowledge of the obligee of the bond before delivery. Clarke v. Williams, 61 Minn. 12, 62 N. W. 1125. If the sureties intrust the bond to their principal, and he fails to comply with the conditions, and delivers the bond in violation thereof, it becomes, upon such delivery, a valid and binding contract, if the obligee have no notice of the condition. In this case defendant sureties offered evidence tending to show the conditional execution of the bond in question, and it was excluded by the court. The court required defendants to first prove that plaintiff had notice of such condition. This ruling went to the order of proof, and was not erroneous. Defendants attempted to show that plaintiff had notice of the condition, but wholly failed. The most that their evidence tended to show in that direction was that one or more of the officers of the plaintiff knew of the condition. But such notice did not come to the officers in their official capacity, or while engaged in the performance of their duties to plaintiff, and plaintiff cannot be bound thereby. Plaintiff is a public corporation, and is bound by the acts and conduct of its officers only when they are engaged in the duties of their office, and notice to them to bind the corporation must come to them in their official capacity, and while acting within the scope of their authority. Stoner v. Keith Co. (Neb.) 67 N. W. 311;School Dist. v. Hibbard (Iowa) 81 N. W. 245;Carroll Co. v. Ruggels (Iowa) 28 N. W. 590;Harvey v. State, 94 Ind. 159;Harrington v. School Dist., 30 Vt. 155; Ang. & A. Corp. 309, 339, 659. Todd was not acting in his capacity as officer of plaintiff while engaged in procuring sureties for Robinson's bond, and plaintiff is not bound by information obtained by him in doing so. Bang v. Brett, 62 Minn. 4...
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