Gage v. the City of Chicago.

• Decision Date: 31 October 1878
• Parties: DAVID A. GAGE ET AL.v.THE CITY OF CHICAGO.
• Court: United States Appellate Court of Illinois

2 Ill.App. 332

2 Bradw. 332

DAVID A. GAGE ET AL.

v.THE CITY OF CHICAGO.

Appellate Court of Illinois, First District.

October Term, 1878.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Cook county; the Hon. JOHN G. ROGERS, Judge, presiding.

Mr. WIRT DEXTER, Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Mr. JOHN N. JEWETT, for plaintiffs in error; contended that the liability of a surety is strictissimi juris, and cannot be extended by implication, and cited Miller v. Stewart, 9 Wheat. 680; Leggett et al. v. Humphreys, 21 How. 75; Smith v. United States, 2 Wall. 235; Stull v. Hance, 62 Ill. 52.

The sureties should have been permitted to show that the deficit in fact occurred during the first term of Gage as treasurer: M'Dowell v. Burwell's Adm'r, 4 Randolph, 317; Craddock v. Turner's Admx. 6 Leigh, 116; Nolley et al. v. Calloway County Court, 11 Mo. 287; Myers v. United States, 1 McLean, 493; Farrar et al. v. United States, 5 Pet. 383; United States v. Boyd, 15 Pet. 206; Inhabitants of Rochester v. Randall et al. 105 Mass. 295; Bruce v. United States, 17 How. 437; United States v. Eckfor'ds Ex'rs, 1 How. 257; Patterson v. Inhabitants of Freehold, 38 N. J. 255; State v. Rhoades, 6 Nev. 352; Mumford et al. v. Overseers, etc. Nottoway, 2 Randolph, 213; County of Mahaska v. Ingalls, 16 Iowa, 85; Bessinger v. Dickerson, 20 Iowa, 261; Vivian v. Otis et al. 24 Wis. 518; Paw Paw v. Eggleston, 25 Mich. 36; Detroit v. Weber, 29 Mich. 24; Bissell v. Saxton et al. 66 N. Y. 55.

It was proper for plaintiffs in error to show that the funds received and charged against the treasurer at the end of his first term, were actually loaned out for the account and benefit of the city, and such evidence was improperly excluded. If such was the fact, it is in the nature of an estoppel in pais; C., R. I. & P. R. R. Co. v. City of Joliet, 79 Ill. 25; City of Peoria v. Johnston, 56 Ill. 45; Goodwin v. City of Milwaukee, 24 Wis.; Peck v. Barr, 10 N. Y. 294; Lane v. Kennedy, 13 Ohio St. 42; Commonwealth v. Mittenberger, 7 Watts. 450; Easton et al. v. N. Y. & L. B. R. R. Co., 24 N. J. Eq. 50; Att'y Gen. v. Sheffield Gas Co. 3 De Gex, M. & Y. 312.

Bonds, with the material parts left in blank, signed by the parties, are absolutely void: Ayer v. Harness, 1 Ham. O. 173; Gilbert v. Anthony, 1 Yerg 69; Wayne v. Governor, 1 Yerg. 149; Byrn v. McClanahan, 6 Gill. & J. 250; Parminter v. McDaniel, 1 Hill. 267; Boyd v. Boyd, 2 N. & McC. 125; United States v. Nelson, 2 Brock. 64; McKee v. Hicks, 2 Dev. 379; Borden v. Southerland, 70 N. C. 528; People v. Organ et al. 27 Ill. 27; Church v. Noble, 24 Ill. 291; Chase v. Palmer, 29 Ill. 306; Sans v. The People, 3 Gilm. 327; Bartlett v. Board of Supervisors, 59 Ill. 364; Ingraham et al. v. Edwards, 64 Ill. 526; Maus v. Worthing, 3 Scam. 26; Bragg v. Fessenden, 11 Ill. 544; Hanford v. McNair, 9 Wend. 55; Blood v. Goodrich, 9 Wend. 67; Clendaniel v. Hastings, 5 Har. 408; McNutt v. McMahon, 1 Head. 98; People v. Kneeland, 31 Cal. 288; Lovett et al. v. Adams et al. 3 Wend. 380; Smith et al. v. United States, 2 Wall. 219; Pawling v. United States, 4 Cranch. 219; Doane v. Eldridge et al. 16 Gray, 254.

The paper, signed in blank by the sureties, and void when it left their hands, did not afterwards become a valid obligation against them: Smith v. Peoria County, 59 Ill. 412; Wild Cat Branch v. Ball et al. 45 Ind. 213; Ward et al. v. Churn, 18 Gratt. 801.

Notice to the city clerk that the bond had been signed in blank, was notice to the city: Angell and Ames on Corporations, § 305; Dillon on Municipal Corporations, § 39; Danville Bridge Co. v. Pomeroy et al. 15 Pa. St. 151; Trenton Banking Co. v. Woodruff et al. 2 Green, 174; Custer v. Tompkins Co. Bank, 9 Pa. St. 27; Wing v. Harvey, 27 Eng. L. & Eq. 140; Porter v. Bank of Rutland, 19 Vt. 410; New Hope, etc. Co. v. Phœnix Bank, 3 N. Y. 156; Selden v. Del. & Hud. Canal Co, 29 N. Y. 634; Fulton Bank v. N. Y. & S. Canal Co. 4 Paige, 127; P. F. W. & C. R'y Co. v. Ruby, 38 Ind. 294; Great Western R'y Co. v. Wheeler, 20 Mich. 419; McEwen v. Montgomery Co. Ins. Co. 5 ??ll, 101; Jackson v. Sharp, 9 Johns. 163; McCormick v. Bay City, 23 Mich. 457; Harrington v. School District, 30 Vt. 155; Hayden v. Trempla Co. 10 Mass. 397; Nichols v. Boston, 98 Mass. 39; Smith v. Board of Water Com'rs, 38 Conn. 208; Field v. The Mayor, 6 N. Y. 179; Hall v. City of Buffalo, 40 N. Y. 193.

Notice to the assistant corporation counsel of the defects in the execution of the bond, was notice to the city: Williams v. Tatnall, 29 Ill. 553: Allen v. McCalla, 25 Iowa, 464; Bierce v. Red Bluff Hotel Co. 31 Cal. 165.

The statute declaring that a failure to file the bond within the time required, vacated the office and terminated all liability on the bond, is mandatory and demands strict compliance: Supervisors, etc. v. The People, 7 Hill, 511; Wheeler v. City of Chicago, 24 Ill. 107; Kane v. Footh, 70 Ill. 587; Pearse v. Morris, 2 A. & E. 96; Hurford v. City Omaha, 4 Neb. 351; Ross v. The People, 78 Ill. 375; People v. Percells, 3 Gilm. 59.

The recital in the bond limits and controls its covenants: 2 Smith's L. Cas. 707; Lord Arlington v. Merricke, 2 Saund. 411; Liverpool Waterworks Co. v. Alkinson, 6 East. 507; Mayor, etc. v. Horn, 2 Har. 195.

The evidence offered on the motion for a new trial was of that positive character which entitles the party to a new trial: Crozier v. Cooper, 14 Ill. 139; Ritchey v. West, 23 Ill. 385; Cowan v. Smith, 35 Ill. 416.

Mr. JOSEPH F. BONIFELD and Mr. SIDNEY SMITH, for defendant in error; argued that if the blanks were filled before delivery, without notice to the city that the bond was signed in blank, it is a valid bond, and cited Bartlett v. Board of Education, 59 Ill. 364; Smith v. Board of Supervisors, 59 Ill. 412; Dair v. United States, 16 Wall. 1; Butler v. United States, 21 Wall. 272.

The bond takes effect only from delivery and acceptance. It could only be accepted by the city council, and when accepted it was in a complete form: People v. Neeland et al. 31 Cal. 288; Burgess v. Lloyd, 7 Md. 178; Brown v. Murdock, 16 Md. 521; Stiles v. Probst, 69 Ill. 382; 2 Washburn on Real Prop. 607.

Knowledge by the city clerk that the bond was signed in blank was not notice to the city of that fact: Parmenter v. McDaniel, 1 Hill (S. C.) 267; Paley on Agency, 266; Dillon on Municipal Cor. § 176, N. 2; 1 Story's Eq. § 408; Willis v. Valette, 47 Met. (Ky.) 176; Gould v. Oliver, 2 Scott, 241; Bank of Pittsburgh v. Whitehead, 10 Watts, 397; Custer v. Tompkins Co. Bank, 9 Barr. 27; National Bank v. Norton, 1 Hill, 572.

Signing the bond in blank and delivering to the principal, conferred upon him authority to fill the blanks, and deliver the bond thus perfected as a binding security: Freeman v. The People, 54 Ill. 153; Texira v. Evans, 1 Anstr. 228; Speaker v. United States, 9 Cranch, 28; Smith v. Crooker, 5 Mass. 538; United States v. Nelson et al. 2 Brock. 64; Drury v. Foster, 2 Wall. 24; Butler v. United States, 21 Wall, 272; Inhabitants of South Berwick v. Huntress, 53 Me. 89; State v. Pepper et al. 31 Ind. 76; McCormick v. Bay City, 23 Mich. 457; State v. Peck, 53 Me. 284; State v. Young et al. 23 Minn. 551; Wright v. Harris, 31 Iowa, 272; Wiley v. Moor, 17 Serg. & Raule, 438; Knapp v. Maltby, 13 Wend. 587; Kirwin's case, 8 Cow. 118; Byers v. McClenahan, 6 Gill. & J. 250.

Failure of the treasurer to file his bond within fifteen days after the official declaration of his election, does not ipso facto vacate the office: People v. Brewster, 15 Ill. 492; People v. Cummings, 25 Ill. 325; Marbury v. Madison, 1 Cranch, 49; Rex v. Loxdale, 1 Burr, 447; Kerney v. Andrews, 2 Stockt. Ch. 70; State v. Churchill, 41 Mo. 41; People v. Holly, 12 Wend. 480; State v. County Court, 44 Mo. 230; State v. Porter et al. 7 Ind. 204; Giliden v. Towle, 11 Foster, 166; Hartford Ins. Co. v. Walsh, 54 Ill. 168; Speaker v. United States, 9 Cranch, 28; State v. Tower, 7 Rich. (Law) 216; Sprowle v. Lawrence, 33 Ala. 674; Green v. Wardwell, 17 Ill. 278; Shaw v. Havekluft, 21 Ill. 127; United States v. Maurice, 2 Brock, 96.

Testimony offered by defendants to impeach the official reports of the treasurer, was properly excluded: Thompson v. Board of Trustees, 30 Ill. 99; United States v. Prescott, 3 How. 578; Inhabitants of Hancock v. Hazzard, 12 Cush. 112; Muzzy v. Shattuck, 1 Denio, 233; State v. Harper, 6 Ohio St. 607; Halbert v. State, 32 Ind. 125; Commonwealth v. McEachron, 33 N. J. 339; Overacre v. Garrett, 5 Lans. 156; Simpkins v. Cobb, 2 Bail. 60; Trimmiar v. Trail, 2 Bail. 480.

The defendants are estopped to deny the truth of such reports: Hoyne v. Small, 22 Me. 14; Sheldon v. Payne, 3 Selden, 453; Townsend v. Olin, 5 Wend. 207; Matthews v. Dare, 20 Md. 248; Eastman v. Bennett, 6 Wis. 232; Board of Trustees v. Fennemore Cox 242; Cave v. Mills, 7 Hurlst. & N. 913; 3 Kents' Com. 124; Rochester City Bank v. Elwood, 21 N. Y. 90; Belloni v. Freeman, 63 N. Y. 387; Gilbert v. Isham, 16 Conn. 525; Commissioners v. Mayrant, 2 Brev. 228; Seaver v. Young, 16 Vt. 658; Patterson's appeal, 48 Pa. St. 345; Patterson v. Guardians, etc. Belford Union, 38 Eng. L. & Eq. 440; Evans v. Keeland, 9 Ala. 42; McCabe v. Ranay, 32 Ind. 309; Willis v. Gallagher, 46 Pa. St. 205; Bochnur v. Schuylkill Co. 46 Pa. St. 452; United States v. Girault, 11 How. 27; Pinkstaff v. The People, 59 Ill. 148; Morley v. Town of Metamora, 78 Ill. 394.

A judgment against the principal for an official delinquency is conclusive against the surety, both as to the fact of default and its extent: Wiley v. Faulk, 6 Conn. 74; Hobbs v. Middleton, 1 J. J. Marshall, 186; Strovall v. Banks, 10 Wall. 583; Charles v. Hoskins, 14 Iowa, 471; Baker v. Preston et al. 1 Gilmer 235; State v. Grammar, 29 Ind. 530; Barrett v. Copeland, 18 Vt. 67.

The treasurer should account for the interest on the money received: Hughes v. The People, 82 Ill. 78.

Even if the objection to interest items is well taken, this Court may make the proper deduction and enter judgment...