Bonney v. Robertson
| Decision Date | 09 September 1895 |
| Citation | 6 Colo.App. 485,41 P. 842 |
| Parties | BONNEY v. ROBERTSON et al. |
| Court | Colorado Court of Appeals |
Error to district court, Chaffee county.
Action by Josiah M. Bonney against William E. Robertson and others on a bond executed by Robertson as principal and the other defendants as sureties. There was a judgment in favor of the sureties, and plaintiff brings error. Affirmed.
In January, 1891, Josiah M. Bonney was the treasurer of Chaffee county, charged with the duty of collecting the taxes due the county and state as provided by statute. William E. Robertson was at that time proprietor of the Chaffee County Bank, doing a general banking business at Salida, where the treasurer's office was located. Bonney deposited the various public moneys which he collected from time to time in the Chaffee County Bank; and, to secure him against loss Robertson, with divers other persons, who signed the bond as sureties, executed a bond in the sum of $50,000, which contained the following condition: "The conditions of the foregoing obligation are such that, whereas J.M. Bonney, as treasurer of Chaffee county, has and does deposit certain sums of money belonging to the county and state with William E. Robertson, as proprietor of the Chaffee County Bank, from time to time, and for the purposes of securing said J.M. Bonney, as treasurer of said county against the loss of any funds which he may have now or at any future time on deposit in the Chaffee County Bank: Now therefore, if the said William E. Robertson shall in all respects well and truly perform and pay over, when called upon, all moneys so deposited, then this obligation shall be void; otherwise it shall be and remain in full force and virtue." The treasurer deposited money from time to time, amounting in the aggregate to a very considerable sum. The deposits were continued until the 1st day of July, 1893 when the bank failed, and Robertson made a general assignment for the benefit of his creditors. It is important to notice the dates and circumstances under which the money was placed in Robertson's keeping, and the position which Robertson held when these deposits were made. Bonney had been elected treasurer prior to the time the bond was given. The term of office, which is regulated by statute, for which he had been elected, expired on the 7th of July, 1892. About this time some change was made in the term of office of county treasurers, and the board of county commissioners, who had authority for the purpose, appointed Bonney as treasurer to serve until the ensuing January of 1893. Under this appointment, Bonney, on the 21st of July, 1892, qualified, and gave a bond in the sum of $50,000 for the faithful performance of his duties. His antecedent bond had been for $100,000. There was no new contract between Robertson and his sureties and Bonney after the appointment, and Bonney continued to deposit as before. In the ensuing fall, at the general election, Bonney was re-elected to the office of treasurer for the term commencing in January, 1893. He did not qualify, however, under the election, until the ensuing August. He continued to discharge the duties of the office, and still kept his deposits in the bank as before, and at the date of the failure, in 1893, had on deposit upward of $18,000. All these various facts were set up in the answers filed by the sureties, to which the plaintiff in error demurred. The demurrer was overruled, and judgment entered for the sureties. The treasurer brings the case here by error.
C.S. Libby and G.K. Hartenstein, for plaintiff in error.
Thomas, Hartzell, Bryant & Lee, for defendants in error.
BISSELL J. (after stating the facts).
The judgment is right, and the sureties are not liable on their undertaking. No principle is more firmly settled than that a surety cannot be held beyond the express term of his contract. Unless he be obligated by the specific terms of his engagement, his liability cannot be extended by implication. The rule is universally applied both in actions at law and in suits at equity, and rests upon the most salutary principles. Where the terms of the undertaking are at all ambiguous, the courts are always at liberty to look both to the recitals of the instrument and all the circumstances surrounding the parties when the contract was entered into, and may likewise consider the subject-matter of the instrument, and therefrom determine the scope and object of the intended guaranty. Le Roy v. Servis, Caines, Cas. 1; French v. Carhart, 1 N.Y. 96; Bank v. Myles, 73 N.Y. 335. A like principle is expressed in other cases. In many of them, where the courts have undertaken to determine whether the sureties of a treasurer or deputy should be held liable for defaults occurring after the term for which he had been elected or appointed, whether by public, municipal, or private corporations, they have resorted to the acts of parliament the statutes, and the proceedings of the boards of directors of private corporations, to ascertain the nature of the office held by the principal, the term for which he was elected or...
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General Ins. Co. of America v. City of Colorado Springs, 80SC139
...which govern the construction of contracts in general. E.g., Covey v. Schiesswohl, 50 Colo. 68, 114 P. 292 (1911); Bonney v. Robertson, 6 Colo.App. 485, 41 P. 842 (1895); Restatement of Security, § 88 (1941). The significance of construing the contractual obligation as either a penalty bond......
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Kelley v. Moab State Bank
... ... judgment, plaintiff appeals ... AFFIRMED IN PART, and REVERSED and remanded with directions ... C. A ... Robertson, of Moab, and Cheney, Jensen, Holman, & Stephens, ... of Salt Lake City, for appellant ... Knox ... Patterson, of Price, for ... 860, is so ... dissimilar to the case at bar that it is not in point ... Finally, counsel for respondents cite the case of ... Bonney v. Robertson , 6 Colo. App. 485, 41 ... P. 842, as being a case directly in point. This seems to be ... an isolated case, decided by the Colorado ... ...
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Holmes v. Elder
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