City of Newburyport v. Davis

• Citation: 209 Mass. 126,95 N.E. 110
• Parties: CITY OF NEWBURYPORT v. DAVIS.
• Decision Date: 19 May 1911
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

209 Mass. 126

95 N.E. 110

CITY OF NEWBURYPORT v. DAVIS.

Supreme Judicial Court of Massachusetts, Essex.

May 19, 1911

COUNSEL

R. G Dodge and A. Withington, for plaintiff.

Hannan & Healey and Sweeney & Cox, for defendant.

OPINION

RUGG J.

This is an action against one of the sureties upon three several bonds, dated respectively January 1, 1894, January 1, 1898 and January 1, 1902, given to the plaintiff city by one Felker, its treasurer and collector of taxes from 1883 to 1906, who embezzled large sums from the plaintiff in and subsequent to 1896.

The bonds are identical in the condition which, after reciting the election of Felker to the office 'for the current municipal year,' provides that if he 'shall well and truly perform all the duties and responsibilities which devolve upon him by virtue of his acceptance of the two offices aforesaid during the term for which he has been elected and for such further term or terms or portion of a term for which he may be elected or for which he may serve and if the said James V. Felker shall annually, not later than the first Monday of February, obtain the approval of the mayor and aldermen of said city of Newburyport, then this obligation shall be void; otherwise it shall remain in full force.'

1. The bond is aptly phrased to express a continuing obligation, for the current year and for each successive year of continuous elections to or service in the offices named by the principal obligor. There can be no doubt of its binding froce in this regard. Chelmsford Co. v. Demarest, 7 Gray, 1-3; Middlesex Mfg. Co. v. Lawrence, 1 Allen, 339; Lexington & West Cambridge R. R. Co. Co. v. Elwell, 8 Allen, 371; Singer Manufacturing Co. v. Reynolds, 168 Mass. 588, and cases cited at page 590, 47 N.E. 438, 60 Am. St. Rep. 417; O'Brien v. Murphy, 175 Mass. 253, 56 N.E. 283, 78 Am. St. Rep. 487. But it is contended that language in the bond to the effect that Felker shall annually 'obtain the approval of the mayor and aldermen' interposes as a condition precedent to the springing into being of liability under subsequent elections a renewed annual approval of the bond, and that accordingly his failure to comply with this condition prevents the continuing obligation feature of the bond from becoming vital and effective. While perhaps an instrument might be so framed as to express this purpose, the language of this condition does not do so. The meaning of this clause is not plain. It may perhaps be construed to require Felker to get an approval of himself, that is an auditing and an expression of satisfaction with his accounts, or that the bond should be presented anew to the proper city board as additional security to the general sureties in the event of the death or impaired financial standing of any of them. But whatever its exact significance, it does not purport to cut down the continuity of obligation unequivocally set forth in the earlier part of the sentence. It does not state a limitation upon liability, but a requirement of the doing of something by Felker default in performance of which raises an additional ground of liability on the part of the sureties. There is no ground for reversing the literal and grammatical meaning of words in order to effectuate a mere conjecture based upon a subsequent unanticipated event as to what might have been the intent of the parties in drafting a somewhat obscure sentence. These bonds expressed an obligation to the plaintiff arising upon each successive election to office of the principal obligor.

2. Although the statute and ordinance required bonds to be given satisfactory to and approved by the mayor and board of aldermen, it is not necessary to decide whether these were so approved for the reason that they were valid as common-law obligations. Farr v. Rouillard, 172 Mass. 303, 305, 52 N.E. 443, and cases cited.

3. The negligence of other officers of the plaintiff in not discovering the defalcations of Felker is no defense to this action. Hudson v. Miles, 185 Mass. 582-587, 71 N.E. 63, 102 Am. St. Rep. 370.

4. The bonds are not cumulative, but substitutional in their nature. It often happens that when a new bond is given voluntarily and unqualifiedly, not in accordance with a requirement of statute, ordinance or by-law, but by reason of agreement or in response to demand or on account of changed conditions or in other ways without compulsion it is held to be concurrent with previous like obligations. Forbes v Harrington, 171 Mass. 386, 50 N.E. 641 and Hudson v. Miles, 185 Mass. 582, 587, 71 N.E. 63, 102 Am. St. Rep. 370, illustrate this principle. But these bonds were given by the incumbent of a public office which by law must be filled by an annual election. It requires plain and definite language to extend liability beyond the term of office for which the bond is given. When expressly continuing to future official...