City of Fond Du Lac v. Moore

• Decision Date: 31 May 1883
• Citation: 58 Wis. 170,15 N.W. 782
• Parties: CITY OF FOND DU LAC v. MOORE AND OTHERS, IMPLEADED, ETC.
• Court: Wisconsin Supreme Court

58 Wis. 170

15 N.W. 782

CITY OF FOND DU LAC

v.MOORE AND OTHERS, IMPLEADED, ETC.

Supreme Court of Wisconsin.

Filed May 31, 1883.

Appeal from circuit court, Rock county.

This action was brought upon the official bond of John C. Pierron, late treasurer of the plaintiff city. The defendants are the sureties in such bond. The summons was served upon one Thomas Mason, also one of the sureties, who died before the complaint was filed. The defendants Moore, Hughes, Lallier, Bartlett, and Gaynor answered, and are the appellants here. The remaining defendant, Baker, did not answer, and does not join in the appeal.

Pierron was elected city treasurer on the first Tuesday in April, 1879, (succeeding in that office one Town,) and duly qualified and acted as such for the ensuing term. He was re-elected to the same office on the first Tuesday in April, 1880, and qualified by filing his official oath, and giving the bond in suit, which is a joint and several bond in the penal sum of $100,000. It is in the usual form, and was duly executed by Pierron as principal, and the defendants as sureties. The condition is as follows: “Whereas, the above-bounden J. C. Pierron was at the last annual election duly elected to the office of treasurer of said city of Fond du Lac for the next ensuing year. Now, therefore, the condition of the above obligation is such that if the said J. C. Pierron shall faithfully discharge the duties of the office of treasurer of said city of Fond du Lac, and shall faithfully and truly account for and pay over, according to law, all moneys which shall come into his hands by virtue of his said office, then this obligation to be void, otherwise to remain in full force and virtue.”

Pierron was re-elected city treasurer at the election in April, 1881, and filed his oath of office in due time, but failed to give any bond. At a meeting of the common council of the city, held May 23, 1881, a communication from Pierron was read informing the council that “owing to the unfortunate failure of Robert A. Baker, in whose bank the money belonging to the city has been deposited for the last five years,” he would be unable to place sufficient funds in the treasury for the necessary expenditures in the months of May and June. Baker (who is one of the sureties in the bond and a defendant in this action) was a private banker. He failed and permanently closed his bank May 17, 1881. At the same meeting of May 23d, the common council passed a resolution notifying Pierron that unless he should file his official bond on or before the twenty-sixth of that month, the council would declare his office vacant and elect his successor. This resolution was served on Pierron the following day. On May 26th the council passed a resolution reciting the foregoing proceedings, the failure of Pierron to file his bond as required, and his avowed inability to fulfill his duties as city treasurer, and declaring the office vacant. The council thereupon elected John Woodhull his successor.

May 31, 1881, the mayor informed the council that Woodhull declined to accept the office. Thereupon that body elected Pierron, who, on June 13th, following, filed his official oath and an official bond. The council met on the same day--June 13th--and Pierron's bond was read. The question of his eligibility on account of his being in default to the city was raised and discussed, and the bond was laid upon the table until the next meeting of the council. Pierron ceased to act as treasurer May 17th. The common council again met June 18, 1881, and adopted a resolution that Pierron “is not a competent person in the law to be confirmed in and to hold the said office of treasurer of Fond du Lac, or to fill the vacancy so as aforesaid existing in said office, and the same be and hereby is declared to be vacant, and that the council refuse to receive or approve the bond tendered by said Pierron.” Thereupon one H. P. Brown was elected to such office. The resolution in a preamble recites the previous proceedings, and assigns as the reason for the action of the council that Pierron “has been unable to, and has failed and still does fail to, qualify himself to hold and to continue to hold said office of city treasurer, by settling, accounting for, or paying over the funds, or any part thereof, for which he was and is in default as such treasurer of the city of Fond du Lac, and thereby removing his disability to hold said office.” Brown duly qualified June 22d. and the next day entered upon the duties of his office. At a meeting of the council held June 23d, a communication from Pierron was read, asking that a committee be appointed to adjust his balances and settle with him in full. This communication seems to have been informally referred to Mr. Brown. The latter had interviews with Pierron on June 23d, 24th, and 25th, relative to getting possession of the books, moneys etc., belonging to the office. In the last interview Brown demanded of Pierron “all the books, papers, accounts, and everything which he held of every nature as city treasurer.” Pierron refused to deliver them, and constantly refused to recognize Brown as city treasurer.

July 6th, Pierron wrote to the council under that date as follows: “Believing it to be for the best interests of the city, as well as for each and every individual, I hereby tender my resignation as city treasurer of the city of Fond du Lac.” No action was taken by the council on the communication. Pierron had an accounting with Brown July 7th, and surrendered to Brown the books of the office, vouchers, and such money as he then had on hand, and Brown receipted therefor. The books of the treasurer showed a deficit of $37,160.15 in the hands of Pierron, no part of which has been paid by him. July 13th, Brown made demand of Pierron in writing for such deficit. The latter replied that he had surrendered everything he had, and the amount of such deficit was lost in Baker's bank. When Pierron succeeded Town in the office of city treasurer, he receipted to Town, under date of May 7, 1879, for $34,197.88, of which sum $24,223.61 was receipted for as cash, and the balance consisted of several items denominated in the receipt “cash items.” The receipt corresponds in amounts with the charges standing against Town on the official books of account in the office. These same books show the balance against Pierron at the close of his first term to be $42,427.84.

It may here be stated (although not in due order of time) that, by direction of the common council, two orders were drawn upon the bond fund in the hands of the treasurer, in favor of the mayor and finance committee, amounting in the aggregate to $12,843.75, for the purpose of investing the money in United States bonds. These orders bear date May 17, 1881, and on that day were presented for payment by the drawees at the city treasurer's office, but were not paid. There then was, or should have been, sufficient money in the hands of the treasurer belonging to that fund to pay these orders.

A statement of the pleadings is unnecessary. It is sufficient to say that they present all of the questions considered in the opinion and determined by the court. Whatever further statement of the case is necessary will be found in the opinion.

The place of trial of the cause was changed from Fond du Lac to Rock county, and the same was tried in the latter county before the late Judge CONGER, who, at the close of the trial, directed the jury to return a verdict for the plaintiff for the above deficit and interest, amounting in all to $39,547.15. The accuracy of the computation is not questioned. A verdict was rendered accordingly. A motion for a new trial was denied, and judgment for the plaintiff pursuant to the verdict was thereupon entered.E. S. Bragg and George P. Knowles, for respondent, the City of Fond du Lac.

Geo. E. Sutherland, C. D. Cleveland, and H. M. Finch, for appellants, M. D. Moore and others.

LYON, J.

1. At the outset we are called upon to construe the bond in suit and determine its scope and effect. The learned counsel for the appellants, in their arguments, contended with much earnestness that the recital in the bond, “Whereas, the above-bounden J. C. Pierron was, at the last annual election, duly elected to the office of treasurer of said city of Fond du Lac for the next ensuing year,” limits the liability of the sureties, and that such liability terminated at the expiration of “the next ensuing year,” to-wit, on the first Tuesday in April, 1881, or at the furthest on the twenty-second of April, that being the day on which it is claimed Pierron must be deemed to have vacated his office for failure to file his bond, if the charter of the plaintiff city required him to file any bond.

There can be no doubt that the recitals in a bond operate to limit and control the conditions, although such conditions be expressed in general terms. Sanger v. Baumberger, 51 Wis. 529, [S. C. 8 N. W. REP. 421,] and cases cited by Mr. Justice ORTON in the opinion. The time mentioned in the recital, to-wit, “the next ensuing year,” must have a reasonable construction. The recital is that Pierron was elected at the last annual election, and that shows he was elected for a full term. The tenure of his office was one year, and until his successor should be elected and qualified. City Charter, Laws 1879, c. 240, § 13, p. 387. Manifestly, by using the words “the next ensuing year” in the bond, the sureties intended to bind themselves for Pierron's official conduct during his current term. That might be more than one year, or it might be less. It seems to be an unreasonable construction to say that they intended just 12 calendar months--no more and no less. We discover no essential difference between the recital in this bond and that in the town treasurer's bond, which this court construed in Sup'rs of Omro v. Kaime, 39 Wis. 468. There the recital was that Kaime, the defaulting treasurer, had been “duly...