Brockway v. Petted

• Court: Michigan Supreme Court
• Writing for the Court: GRANT, J.
• Citation: Brockway v. Petted, 79 Mich. 620, 45 N.W. 61 (Mich. 1890)
• Decision Date: 11 April 1890
• Parties: BROCKWAY v. PETTED et al.

45 N.W. 61

79 Mich. 620

BROCKWAY v. PETTED et al.

Supreme Court of Michigan

April 11, 1890

Appeal from circuit court, Kent county; WILLIAM E. GROVE, Judge.

William F. McKnight and Turner &amp Carroll, for appellants.

Myron H. Walker, for appellee.

GRANT J.

Plaintiff sued defendant Robert Patterson for injury sustained by her in consequence of his having sold liquor to her husband. She obtained judgment, and thereupon brought this suit upon the liquor bond signed by defendant Patterson as principal and the other defendants as sureties. She recovered judgment in the court below. The bond was dated May 5 1886, and was the bond required by How. St. � 2278. The bond was accepted and approved by the town board May 12, 1886, and their approval indorsed thereon May 15th. It was filed with the county treasurer May 27th. The act of Patterson for which plaintiff recovered her judgment occurred between the date of the approval of the bond and its filing with the county treasurer. Defendants insist that no liability could be incurred under this bond until it had been filed or delivered to the county treasurer. This is the principal question in the case.

1. This is a statutory bond, and must be interpreted according to the intent and meaning of the legislative enactment. It runs to the people of the state of Michigan. Under the statute, the sureties must sign and justify. It must be approved by the town board, and their approval indorsed. It must then be filed with, or delivered to, the county treasurer. No discretion in regard to the receipt and filing is lodged in the county treasurer. When presented, with the approval of the town board indorsed thereon, he is bound to receive it and file it. The filing is clearly for the benefit of the public, and those who may be entitled to remedies under it. The word "delivered," used in this statute, was clearly not intended to be used in the legal sense of a delivery necessary to the execution of a contract. The fact that, in the statute, the word "filed" is used inter-changeably with "delivered," appears to me conclusive on this point. The duty of the treasurer is merely clerical; not intended as an act to give effect to the bond but to make and perpetuate a record of it. "Delivery." in the sense that it is necessary to the complete execution of a contract, implies a discretion both as to tender and acceptance. A deed may be properly signed, witnessed, and acknowledged, but it is not executed until delivery. The grantor may or may not deliver it as he chooses. When the statute provides that a bond shall be deposited, filed with, or delivered to, some public officer, to whom it gives no discretion in the matter, it makes his duty purely clerical. We must, therefore, look to the statute for some other time fixed by it when this bond can be regarded as executed, and given legal effect. That time, in my judgment, is fixed upon the approval of the bond. This court has said that such a bond is valid when accepted and approved by the common council. People v. Laning, 41 N.W. 424. The defense is based upon the theory that there can be no liability as against the sureties until the principal had complied with all the provisions of the law prerequisite to his commencing the business. If defendant Patterson had filed his bond the day after its approval, but failed to pay the tax, the defendants might with equal propriety claim this as a defense, and say, as they now say, that they had a right to believe that their principal would comply with the law before entering upon the business. If Patterson had left this bond with the town board, to be filed by them with the treasurer, and the board had failed to do so, would this defense then be urged? What difference can it make whether Patterson gave the bond to some one else to file with the treasurer, or took it himself for that purpose? He was then carrying on the business. His bond said so. He intended to file it, and did file it afterwards. The case of Hyatt v. Sewing-Machine Co., 41 Mich. 225, 1 N.W. 1037, decides, simply, that a surety is not presumed to have meant to become answerable for acts committed before he signed the obligation. The language of the bond is not given, but the court say "the terms are all future." The principle is recognized in Bruce v. State, 11 Gill & J.

382. That was a suit upon a sheriff's bond. The constitution of Maryland provided that no sheriff should be qualified to act until he had given the bond, and the statute provided before whom, and when, such bond should be taken. The court says: "The bond is made. It is the obligatory act of the signers when, being signed, it is presented to the court or judge, etc., and the sureties are adjudged sufficient * * *. From that moment it is the operative act and deed of the parties, and not before." The case of McMicken v. Webb, 6 How. 293, involved the liability of the signers to a promissory note. So is also the case of Burson v. Huntington, 21 Mich. 430, and Bullock v. Taylor, 39 Mich. 137. They have no application to the case at bar. In Com. v. Kendig, 2 Pa St. 448, the suit was upon the bond of a justice of the peace. It was signed upon Sunday and delivered on Monday to the prothonotary. The court says: "Granting that the bond was signed and delivered on Sunday, yet I am by no means satisfied that it is void as against those who are injured by the official misconduct of the justice. They are innocent parties, and ought not to be affected by the folly or turpitude of the prothonotary and obligors. Such a construction of the act would enable the obligors to take advantage of their own wrong as against persons who cannot by any possibility protect themselves." Does not the same reasoning apply very forcibly to this case? The above are all the authorities cited by the defendants in support of their contention. One of them directly sustains the rule contended for by plaintiff, and none of the others are in conflict with it. The case of State v. Toomer was a suit upon a bond of a master in equity. The statute prescribed several prerequisites to entitle the master to enter upon his duties, one being that he should not enter upon them until he had recorded in the clerk's office a certificate from commissioners that he had lodged in the treasury his bond, and that if he failed to comply with these requisites the office was declared vacant. This was held to be no defense to an action against the sureties. 7 Rich. Law, 216. His official acts as to third persons were held valid, and for official defaults his sureties were liable. A bond is clearly complete, and becomes operative, when all the discretionary acts necessary to give it validity have been performed. When these have been performed, and the principal commences the business mentioned in the bond for the proper performance of which the sureties have become obligated, the bond is then in full force, and the liability of the sureties attaches. In this case the bond was executed, the principal was carrying on the business, and it is fair to presume that his sureties knew it. I find no principle, moral or legal, upon which they can be relieved. If d...