City of St. Louis v. Sickles

• Decision Date: 31 March 1873
• Citation: 52 Mo. 122
• Parties: CITY OF ST. LOUIS, Appellant, v. SUSAN E. SICKLES, Executrix of JAMES B. SICKLES, et al., Respondent.
• Court: Missouri Supreme Court

52 Mo. 122

CITY OF ST. LOUIS, Appellant,

v.SUSAN E. SICKLES, Executrix of JAMES B. SICKLES, et al., Respondent.

Supreme Court of Missouri.

March Term, 1873.

Appeal from St. Louis Circuit Court.

E. P. McCarty, for Appellant.

The recognition and implied authorization of the practice of delivering money to the auditor by the ordinances in force at the time of the execution of this bond, make the receipt of this money his official act and his direct violation of the express provision of ordinance as to its disposition, a breach of the bond.

This was the actual mode of conducting these accounts, established by the auditor and the departments, long before the time this bond was entered into.

Krum and Patrick, for Respondent.

It was not the auditor's duty to receive or disburse the public moneys, and the sureties could not have supposed that the auditor for whom they had become bound simply for the faithful discharge of his duties as auditor, would become the custodian of the public moneys or the disbursing officer of the city.

The obligations of the sureties to this bond, cannot be enlarged by implication.M. L. Gray, for Respondent.

The obligation of a surety is not to be extended by implication beyond the term s of his contract. (Blair vs. Perpetual Ins. o., 10 Mo., 566; Nolley et al., vs. Callaway Co. Court, 11 Mo. 47.)

EWING, Judge, delivered the opinion of the court.

This is an action on the bond of Philip H. Murphy as auditor of the City of St. Louis, against the defendants as his sureties. The condition of the bond is as follows, namely: Now if the said Philip H. Murphy shall faithfully perform all the acts and duties required of him in said office by any law of the State of Missouri or ordinance of the City of St. Louis, now existing or hereafter passed, this obligation to be void; otherwise to remain in force. The bond bears date April 5th, 1867. The breach alleged is, that by an ordinance of the said City of St. Louis passed on the 6th day of September, 1864, the auditor is required at the end of each month to pay over to the treasurer of said city, all monies that may remain unpaid on any pay roll appertaining to his office, and that during the years 1868 and 1869 and whilst the said Murphy continued to be such auditor, he the said Murphy, in the discharge of his duties as such auditor, drew from time to time from the treasury of the plaintiff divers large sums of money on the payrolls appertaining to his office, to be paid out during the respective months in which they were so drawn to the persons respectively entitled thereto, and if not so paid the same were, at the end of the months in which they were drawn, to be paid over to the City Treasury according to the ordinance aforesaid; and plaintiff says that of the sums so drawn by said Murphy from said treasury, he during said period drew the sum--in the aggregate--of $3,075 30-100, which he failed and refused to pay over to the persons thereto entitled, and which he also failed and refused to pay over to said treasurer at the end of the month in which it was received or at any other time, and which said sum the said Murphy failed and refused to pay at anytime to plaintiff or to its said treasurer, and the said Murphy failed and refused, and still does so, to account for or pay over the sum aforesaid, but has appropriated the same to his own use contrary to the said ordinance and to his duties as such auditor.

The suit was dismissed as to Murphy after he filed his answer. The other defendants, Sickles and Cafferata filed separate answers, which however are the same in substance. These answers deny that there was any breach of the bond as alleged, and for further answer and defense to the action, state that under the laws and ordinances the said auditor was an accounting officer of said city and nothing more, it being his duty to audit and allow accounts and claims against said city and certify the same to the treasurer of said city, and that it was no part of his official duty under said laws and ordinances at the time he executed his said bond or at any time since, to receive or pay out money belonging to said city, and that they became the sureties of said Murphy with this understanding of his duties as such auditor. That if said auditor was permitted to draw money from the treasury as alleged, it was by reason of the misconduct of plaintiff, and they ought not to be held responsible therefor.

The evidence tended to prove that warrants had been issued and paid by the treasurer at the end of the various months; that it was the practice of the auditor's office during the time Murphy held it for the auditor to receive the money from the treasurer on warrants for the pay rolls, and pay the same to the various city officers, and that he failed to pay said moneys to the parties entitled to receive the same on said rolls for the years 1868 and 1869, but converted the same to his own use, and that he failed to pay any of said sums of money to the City Treasurer at the end of the respective months in which he received the same or at any time before or after.

These warrants were drawn by the auditor, countersigned by the comptroller and made payable “to pay roll or order.” It further appeared in evidence that...