Board of County Commissioners of St. Louis County v. American Loan & Trust Company
| Decision Date | 02 February 1899 |
| Docket Number | 11,403 - (249) |
| Citation | 78 N.W. 113,75 Minn. 489 |
| Parties | BOARD OF COUNTY COMMISSIONERS OF ST. LOUIS COUNTY v. AMERICAN LOAN & TRUST COMPANY and Others |
| Court | Minnesota Supreme Court |
Action in the district court for St. Louis county upon a bond executed by defendant trust company, as depositary of public funds, and by defendant sureties. The cause was tried before Cant, J., who found in favor of plaintiff, and from a judgment entered in pursuance of his findings, defendants A W. Bradley and seven others appealed. Affirmed.
Depositary of County Funds -- Bond -- Findings Sustained by Evidence.
Held in an action on the bond of a depositary of county funds, that the evidence sustains the findings and conclusions of the trial court to the effect that the depositary was designated; that its bond was approved, and county funds deposited with it in reliance thereon; and that there was a breach of the bond, in failing to repay the funds, to the extent for which judgment was ordered entered.
Certificate of Deposit -- Board of Co. Commrs. v. Security Bank Followed.
Held, further, that the bond secured the amount on deposit, which was represented by a time certificate of deposit. Board of Co. Commrs. v. Security Bank, supra, page 174, followed.
Pass Book -- Evidence.
A pass book kept by the depositary, containing its account with the county, held to have been correctly received in evidence.
Demand -- Proof of Assignment for Benefit of Creditors.
The complaint alleged a demand on the depositary for the county funds, and assigned as a breach of the bond, with others, that it did not well and truly hold the funds subject to draft and payment at all times on demand. No proof of an actual demand was made, but the trial court received proof of the fact that the depositary, before the commencement of the action, made an assignment in insolvency of all its property for the benefit of its creditors. Held not to be reversible error.
Bill of Particulars.
It is only where an account is set forth in a pleading -- that is, alleged as a cause of action, counterclaim or set-off -- that the adverse party is entitled to a bill of particulars, as a matter of right, on demand.
R. R. Briggs, for A. W. Bradley and others, appellants.
It was error not to exclude evidence of the account secured by the bond, because of plaintiff's failure to serve a bill of particulars. City v. McDowell, 12 N.Y.S. 414; Supervisors v. Decker, 28 Wis. 669; Board of Co. Commrs. v. Smith, 22 Minn. 97. The suit is on "an account alleged," as contemplated by the statute. See Tuttle v. Wilson, 42 Minn. 233; Lonsdale v. Oltman, 50 Minn. 52. There was no proper designation of the depositary. The complaint did not state a cause of action. Biron v. Board of Water Commrs., 41 Minn. 519; Mosness v. German-Am. Ins. Co., 50 Minn. 341. The contract of the sureties will not be enlarged by construction. Where a bond is conditioned to account on demand, demand must be alleged, and the time and place should be specified. Board of Co. Commrs. v. Citizens' Bank, 67 Minn. 236, 241; Nelson v. Bostwick, 5 Hill, 37; Bellows Falls v. Rutland, 40 Vt. 377; Douglass v. Reynolds, 7 Pet. 113. It is only where facts excusing a demand are alleged that allegation of demand may be dispensed with. Board of C.H. & C. H. Commrs. v. Irish-Am. Bank, 68 Minn. 470; Mosness v. German-Am. Ins. Co., supra.
Washburn, Lewis & Bailey, for A. B. Chapin and others, appellants.
Wm. B. Phelps, County Attorney, for respondent.
Defendants were not entitled to a bill of particulars. Board of Co. Commrs. v. Smith, 22 Minn. 97; Blackie v. Neilson, 6 Bosw. 681; Jones v. Northern Trust Co., 67 Minn. 410. The sureties are estopped to deny that the company was duly designated as depositary. Board of Co. Commrs. v. Butler, 25 Minn. 363; Board of Co. Commrs. v. State Bank, 64 Minn. 180. Demand was unnecessary, since the bank placed itself in such a position that demand was useless. Board of C.H. & C.H. Commrs. v. Irish-Am. Bank, 68 Minn. 470. If there was a variance, it was immaterial, since defendants were not misled. G.S. 1894, § 5262; Blackman v. Wheaton, 13 Minn. 299 (326); Washburn v. Winslow, 16 Minn. 19 (33). The pass book was properly received in evidence. Board of Co. Commrs. v. Citizens' Bank, 67 Minn. 236.
This is an action on a bond given by a depositary of public funds, the American Loan & Trust Company, and its sureties. The bond recites that the trust company has been duly designated as depositary of the county, and its conditions are that the trust company shall at all times hold the funds deposited with it subject to draft and payment on demand, and shall pay over, according to law, all funds which shall be deposited with it pursuant to such designation.
The complaint alleges the execution of the bond, its acceptance, the designation of the trust company as a depositary, the deposit of county funds with it, and that on July 14, 1894, there was on deposit with the trust company, and upon open and current account, of the money deposited with it by the county treasurer, the sum of $98,368.21, and the further sum of $7,772.87; and that the county treasurer duly demanded of the trust company, on the day named, the payment of the amount so on deposit with it, which was refused; and further alleges:
"That said American Loan & Trust Company did not well and truly hold said funds subject to draft and payment at all times on demand, and did not well and truly pay over on demand, according to law, said funds deposited in said bank, pursuant to the statutes mentioned in said bond or any part thereof."
The answer of the sureties was, except that it admitted the execution of the bond, in legal effect a general denial. The trial court found upon the issues in favor of the plaintiff, except that there was no finding as to whether a demand was made for the payment of the funds on deposit with the trust company by the county treasurer. But there was a finding to the effect that on July 12, 1894, the trust company was insolvent, and duly made an assignment for the benefit of its creditors under the insolvency laws of the state, and that the assignee accepted the trust, entered upon the discharge of his duties, and at the time of the trial of this action was still acting as such assignee. As a conclusion of law, judgment was ordered for the plaintiff for the amount claimed and interest. It was entered for the sum of $132,352, and costs, from which the defendants appealed.
1. The appellants assign as error the findings of the trial court to the effect that the trust company was designated a depositary, and that the county treasurer, after it was so designated, deposited the funds with it, for the reason that none of them are sustained by the evidence.
It was not necessary to show a legal designation of the trust company as a depositary. It was sufficient to show that the trust company was a de facto depositary, and that the deposits were made in reliance upon the bond. Board of Co. Commrs. v. State Bank, 64 Minn. 180, 66 N.W. 143. The bond in question recited that the trust company had been duly designated as a depositary of county funds. It is true that a depositary cannot be duly designated before the bond is given and approved. G.S. 1894, § 730; Board of Co. Commrs. v. American Loan & Trust Co., 67 Minn. 112, 69 N.W. 704. But a depositary may be conditionally designated, the designation to become operative when the bond is given and approved (G.S. 1894, § 729), and the recital in this bond is an admission that the trust company had been conditionally designated a depositary. If the bond was approved, and thereupon the money of the county was deposited with the trust company under the bond, the sureties, as against the county, would be estopped to deny that the trust company had been designated a depositary, and received the money as a de facto depositary, at least. Board of Co. Commrs. v. Butler, 25 Minn. 363. The original bond, with the approval of the board of county commissioners indorsed thereon, was produced from the files of the treasurer's office, and evidence given tending to show that, after the approval of the bond, the county treasurer deposited the funds of the county with the trust company. Such deposit could not have been lawfully made, except under the bond; hence it will be presumed that the deposit was so made in reliance upon the bond. The findings of fact complained of are sustained by the evidence.
2. An interest-bearing time certificate of deposit was issued to the county treasurer by the trust company for $7,772.87 of the money deposited with it. The appellants claim that the sureties are not liable, under the bond, for the funds so deposited on the time certificate of...
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