Douglas Cnty. v. Bardon

• Decision Date: 05 May 1891
• Citation: 79 Wis. 641,48 N.W. 969
• Parties: DOUGLAS COUNTY v. BARDON ET AL.
• Court: Wisconsin Supreme Court

79 Wis. 641

48 N.W. 969

DOUGLAS COUNTY

v.BARDON ET AL.

Supreme Court of Wisconsin.

May 5, 1891.

Appeal from circuit court, Douglas county.

This action is upon two official bonds of the defendant Vincent Cournoyer, county treasurer of Douglas county,--one of which was executed in January, 1887, by five sureties, but not by the treasurer; and the other was executed in December of the same year by such treasurer and four sureties, one of whom was also surety in the first bond. The last bond was executed pursuant to a resolution of the county board of supervisors requiring such treasurer to give an additional bond. That bond is not involved in this appeal, and no further reference will be made to it. The treasurer and all the sureties are made defendants in the action. The bond of January, 1887, is set out in the complaint. The obligatory part thereof is as follows: “Know all men by these presents that Vincent Cournoyer, as principal; and James Bardon, Denis Dean, Vincent Roy, Josiah Bond, Jr., and James S. Ritchie, as sureties, of Superior, in the county of Douglas, in the state of Wisconsin, are each severally held and firmly bound unto the county of Douglas in the sum set opposite their respective names signed thereto, aggregating in the whole $10,000 good and lawful money of the United States of America, to be paid to the said county of Douglas, its certain attorneys, heirs, executors, administrators, or assigns, for the payment of which sums set opposite our names well and truly to be made we bind ourselves, our heirs, executors, and administrators severally and firmly by these presents. Sealed with our seals, and dated this 18th day of January, in the year 1887.” The condition is in the form prescribed by section 710, Rev. St. Each surety wrote after his signature to the bond, “Two thousand dollars.” Breaches of the bond are charged in the complaint, and judgment demanded because of such breaches for $7,053, with interest and costs. Four of the sureties, the defendants Bardon, Dean, Bond, and Ritchie, interposed two general demurrers to the complaint, which were overruled by the court. A single order was entered overruling the same, from which the four defendants last named appeal.E. L. Johnson and Burhans & Ticknor, ( Cash & Williams, of counsel,) for appellants.

Counsel cited the following cases and authorities: Kimball W. W. Co. v. Baker, 62 Wis. 526, 22 N. W. Rep. 730; Ann. St. §§ 701, 710; Sharp v. U. S., 4 Watts, 21, 23, 28 Amer. Dec. 676, and note; People v. Hartley, 21 Cal. 585;Bean v. Parker, 17 Mass. 591;Wood v. Washburn, 2 Pick. 24;Russell v. Annable, 109 Mass. 72;State v. Austin, 35 Minn. 51, 26 N. W. Rep. 906;Sacramento v. Dunlap, 14 Cal. 421; Ferry v. Burchard, 21 Conn. 598; Bunn v. Jetmore, 70 Mo. 228; 2 Amer. & Eng. Enc. Law, 466; note of Judge REDFIELD in Insurance Co. v. Brooks, 3 Amer. Law Reg. (N. S.) 399;Johnston v. Kimball Tp., 39 Mich. 187; Board v. Sweeney, (S. D.) ante, 302; Murfree, Off. Bonds, §§ 9, 10; Trustees v. Scheick, (Ill.) 8 N. E. Rep. 189; State v. Bowman, 10 Ohio, 445; Herrick v. Johnson, 11 Metc. (Mass.) 26, (37-41;) People v. Breyfogle, 17 Cal. 504.

J. A. Murphy, ( H. W. Chynoweth, of counsel,) for respondent, cited the following cases and authorities:

State v. Bowman, 10 Ohio, 445; Trustees v. Scheick, (Ill.) 8 N. E. Rep. 189; Parker v. Bradley, 2 Hill, 584; Loew's Adm'rs v. Stocker, 68 Pa. St. 226; Keyser v. Keen, 17 Pa. St. 327; Grim v. School Directors, 51 Pa. St. 219; Herrick v. Johnson, 11 Metc. (Mass.) 26; Haskins v. Lombard, 16 Me. 142; Miller v. Tunis, 10 U. C. C. P. 423; Smith v. Peoria Co., 59 Ill. 414;Williams v. Marshall, 42 Barb. 524;Wild-Cat Branch v. Ball, 45 Ind. 213;McLaughlin v. McGovern, 34 Barb. 208; Chase v. Hathorn, 61 Me. 505; Murfree, Off. Bonds, §§ 62, 235; Cutter v. Whittemore, 10 Mass. 442;City of Los Angeles v. Mellus, 59 Cal. 444; Cooper v. Evans, 15 Wkly. Rep. 609; Mann v. Insurance Co., 40 Wis. 549;Moss v. Wilson, 40 Cal. 159;Lewis v. Stout, 22 Wis. 225.

LYON, J., ( after stating the facts as above.)

The demurrers are rested solely upon the proposition that the failure of the county treasurer to execute the bond of January, 1887, renders the same void. This is in effect a concession that, had he executed the same, it would have been a valid obligation. That it would have been valid as a statutory or common-law obligation, had it been executed by the treasurer, cannot be doubted. It is practically conceded by the learned counsel for the appellants that if the bond is a joint and several obligation, it is valid, although the principal named therein failed to execute it. This concession is supported by the great weight of authority, both here and in England. It seems to be quite well settled that the failure of the principal to execute a joint and several bond does not invalidate the same as to a surety, unless there was an express agreement that the bond should not be valid until so executed. No such agreement is claimed in this case. Taylor v. Coon, (Wis.) ante, 123, was an action on an obligation not executed by all the persons named therein as obligors. It was argued that the instrument was incomplete for that reason, and could not be upheld against an obligor...