Board of Education of Rapid City v. Sweeney

• Decision Date: 19 March 1891
• Parties: Board of Education of Rapid City v. Sweeney et al.
• Court: South Dakota Supreme Court

48 N.W. 302

1 S.D. 642

Board of Education of Rapid City v. Sweeney et al.

Supreme Court of South Dakota

March 19, 1891

Syllabus by the Court.

An official bond in which the name of the officer whose bond it purports to be appears in the body thereof as principal, but which is not executed by him, isprima facie an invalid instrument, and not binding upon the sureties thereto.

Appeal from district court, Pennington county.

William Gardner, Schrader & Lewis, and W. H. Mitchell, for appellants. John W. Nowlin, (Chauncey L. Wood, of counsel,) for respondent.

CORSON P. J.

This was an action on the official bond of Bently B. Benedict probate judge of Pennington county. A trial was had before a jury, and a verdict and judgment rendered for plaintiff. A motion for a new trial was made and overruled, and the defendants appeal from the judgment and order overruling the motion for a new trial. The bond upon which the action was based is as follows:

"OFFICIAL BOND AND OATH FOR COUNTY OFFICERS.

Know all men by these presents that we, Bently B. Benedict as principal, and Francis J. McMahon, Joseph B. Gossage Abram Boland, Thomas Sweeney, Joseph B. Gossage, P. B McCarthy, Charles Roberts, Louis Volin, and Herbert S. Hall, as sureties, of the county of Pennington and territory of Dakota, are held and firmly bound unto the county of Pennington, in the territory of Dakota, in the penal sum of five thousand dollars, lawful money of the United States, to be paid to the said county of Pennington, for which payment well and truly to be made we bind ourselves, our executors and administrators, jointly and severally, by these presents. Sealed with our seals and dated this ninth day of January, A. D. 1883. The condition of the above obligation is such that whereas, the said Bently B. Benedict has been elected to the office of probate judge within and for the county of Pennington, Dakota territory: Now, therefore, if the said Bently B. Benedict shall faithfully and impartially discharge the duties of his said office of probate judge, and render a true account of all moneys, verdicts, accounts, and property of any kind that shall come into his hands as such officer, and pay over and deliver the same according to law, then the above obligation to be void; otherwise to remain in full force and virtue.

"FRANCIS J. MCMAHON. [ Seal.]

"JOSEPH B. GOSSAGE. [ Seal.]

"ABE BOLAND. [ Seal.]

"THOMAS SWEENEY.

"CHARLES ROBERTS. [ Seal.]

"P. B. MCCARTHY.

"LOUIS VOLIN.

"HERBERT S. HALL.

"CHAS. ROBERTS.

Signed in presence of J. F. SCHRADER.

Territory of Dakota, county of Pennington--ss.: I, Bently B. Benedict, having been elected to the office of probate judge within and for the county of Pennington, do solemnly swear that I will support the constitution of the United States, and the act organizing this territory, and that I will faithfully and impartially, to the best of my knowledge and ability, perform all the duties of my said office of probate judge, as provided by the condition of my official bond written within. BENTLY B. BENEDICT.

Subscribed and sworn to before me this 9th day of January, A. D. 1883.

"J. S. GANTZ, County Clerk,

"By A. P. STERLING, Deputy."

The bond was filed January 9, 1883, and approved February 15, 1883.

The appellants rely for a reversal of the judgment upon four propositions, which are stated in their brief as follows: (1) This is no bond, because not executed by principal. (2) It was not given to cover the duties of trustee of the town-site. (3) If given to cover duties of trustee of the town-site, the duties of such trustee were materially changed, and his responsibility increased after the giving of the bond. (4) The school-board is not a party to the contract, and cannot sue upon the bond.

It will be observed that while the name of Bently B. Benedict is inserted in the body of the bond as principal, it was not executed by him. The first proposition of counsel for appellants presents the important question as to the liability of sureties upon an official bond when the name of the officer appears upon the face of the bond as principal, but the bond is not signed by him. The authorities upon this question are irreconcilably conflicting, and it therefore becomes the duty of the court to follow that line of decisions best calculated to subserve the ends of justice, and carry out the intention of the law-makers in providing for such official bonds. Section 1371, Comp. Laws, provides that "all civil officers elected by the people *** shall, before entering upon duty, give bond conditioned that they will faithfully and impartially discharge the duties of their office. ***" Section 1375 provides that "every official bond shall be given with at least two sureties. ***" These sections were in force as sections 2, 7, c. 5, Pol. Code 1877. The fair import of the expression "give bond" would seem to be that the officer giving bond should be a party to the instrument itself; and this is emphasized by the fact that such bond shall be given "with at least two sureties." The term "sureties" contemplates a principal for whom there are to be sureties, and a bond not signed by any person as principal can hardly be said to be given with sureties, in the strict sense of that term; for without the signature of the principal the persons who execute it nominally as sureties are really principals, as they are the only parties primarily liable upon the bond. The expression "give bond," as used in reference to official bonds, imports a very different meaning from the expression "give an undertaking," as used in the sections of the statute relating to undertakings in provisional remedies, appeals, etc., which are usually executed by sureties only. And there is much reason for this distinction. In the case of the giving of an official bond, the officer, being required to "subscribe his official oath on the bond," is presumed to be present when the bond is given, and acting in person in giving the bond, while undertakings in the class of cases referred to are frequently, if not generally, given by agents or personal friends, in the absence of the real principal. We think, therefore, the expression "give bond," as used in section 1371, was intended by the legislature to require the officer giving the bond to be a party to it by executing it.

But without placing our decision upon this construction of our statute, we proceed to examine the authorities bearing upon this question in other states. This question was fully considered in Johnston v. Kimball Tp., 39 Mich. 187, in which Mr. Justice CAMPBELL, speaking for the court, says: "Our statutes plainly contemplate that the treasurer shall himself be a party to his own official bond; *** and while we are not prepared to hold that a bond knowingly and intentionally given, without his concurrent liability, will not bind the obligors, we are of the opinion that when he purports to be obligor, and does not sign the bond, there must be positive evidence that the sureties intended to be bound without requiring his signature, before they can be held responsible. The obligation of a surety cannot fairly be extended beyond the scope of his written contract, inasmuch as under the statute of frauds his agreement must be in writing; and we think that presumptively, at least when the contract which he signs calls for the signature of other parties, the instrument is to be deemed inchoate and imperfect until they sign it." Again he says: "When several names are written as co-obligors, and one of them is called upon to sign it, he does so upon an implied understanding that he can, in case of being held responsible, not only have his right of contribution, but a further right to have it capable of proof and enforcement according to the terms of the contract as it purports to be drawn up." See, also, Hall v. Parker, 39 Mich. 287; Green v. Kindy, 43 Mich. 279, 5 N.W. 297. In Wells v. Dill, 1 Mart. (N. S.) 592, the court says: "The contract is incomplete until all the parties contemplated to join in its execution affix their names to it, and while in this state cannot be enforced against any of them. The law presumes that the party signing did so upon the condition that the other obligors named in the instrument should also sign it, and the failure to comply with their agreement gives him a right to retract." In Russell v. Annable, 109 Mass. 72, the court says: "The instrument is incomplete without the signature of each partner, or proof that the signature affixed [firm name] had the assent and sanction of each of them. The sureties on a bond are not holden if the instrument is not executed by the person whose name is stated as principal therein. It should be executed by all the intended parties." And the court cites Bean v. Parker, 17 Mass. 591, and Wood v. Washburn, 2 Pick. 24. See,...