Henry County v. Salmon

• Citation: 100 S.W. 20,201 Mo. 136
• Parties: HENRY COUNTY v. SALMON et al.
• Decision Date: 22 February 1907
• Court: United States State Supreme Court of Missouri

100 S.W. 20

201 Mo. 136

HENRY COUNTY v. SALMON et al.

Supreme Court of Missouri.

February 22, 1907.

1. COURTS — RECORDS — AMENDMENT.

A county court made an order designating a banker as a depositary of county funds on the condition that he file a bond which should be approved. At the time, under Laws 1901, p. 101 [Ann. St. 1906, pp. 3344, 3345], authorizing the selection of county depositaries, the court could only select the successful bidder and designate him as depositary on his filing an approved bond. There was a memorandum on the bond filed, and on the back of it was a memorandum of its approval, certified to by the judge. Held, that there was sufficient data to support a nunc pro tunc entry approving the bond and designating the banker as county depositary.

2. PRINCIPAL AND SURETY — BONDS — VALIDITY — ESTOPPEL.

Where faith and credit have been given to a bond executed by a banker selected as a county depositary and the bond has performed the function of obtaining for the banker the funds of the county, the sureties cannot invoke immaterial variances from statutory form in avoidance of liability.

3. DEPOSITARY — BOND — VALIDITY.

A banker became a county depositary on the making, filing and approval of his bond. He assumed and acted as depositary, and received the moneys of the county as such. Held, that the bond was valid though the county court made no preliminary order designating the banker as depositary, as required by Laws 1901, p. 101 [Ann. St. 1906, pp. 3344, 3345].

4. SAME — EXTENT OF LIABILITY.

To ascertain the liability of the sureties on the bond given by a banker as depositary of county funds, Laws 1901, p. 101 [Ann. St. 1906, pp. 3344, 3345], providing for the selection of county depositaries, must be read into the bond and the liability of the sureties must be determined by its provisions.

5. SAME — COUNTY DEPOSITARY — RELATION BETWEEN COUNTY AND DEPOSITARY.

Where a banker selected as county depositary received as such the funds of the county, the relation between the depositary and the county was that of debtor and creditor, the depositary not being a public officer having charge of public funds.

6. SAME — LIABILITY OF SURETIES.

A banker in 1899 was designated as county depositary of a county, and gave the statutory bond for a term of two years. He continued as county depositary thereafter, and in 1905 defaulted. His predecessor as county depositary was insolvent and did not, on the termination of his duties turn over to the banker in cash the amount due to the county. The banker as depositary continued to pay drafts drawn on him by the county treasurer, until 1905, when payment of a demand by the county was refused. Held, that the sureties on the bond of the banker given for the year 1905 were liable for the loss sustained, whether the deficit occurred prior to the execution of such bond, or was due to the act of the predecessor and without reference to the nonaction of the county treasurers prior to 1905.

7. SAME.

A county treasurer on settling with his successor was short in his accounts. To make up the shortage, of which the successor was ignorant, he discounted a note with the banker who was depositary of county funds, and the proceeds of the note were credited as part of the county funds in possession of the depositary. Held, that the sureties on the depositary's bond were not liable for the county treasurer's shortage.

8. APPEAL — DISPOSITION OF CAUSE — RENDITION OF JUDGMENT.

Where the Supreme Court, on appeal, can by a mathematical calculation determine what judgment the trial court should have entered, the Supreme Court, under the express provisions of Rev. St. 1899, § 866 (Laws 1903, p. 105 [Ann. St. 1906, p. 815]), will enter the proper judgment.

In Banc. Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by the county of Henry against G. Y. Salmon and another as copartners under the name of Salmon & Salmon, and others. From a judgment for plaintiff, defendants W. W. Adamson and others appeal. Modified and affirmed.

C. C. Dickinson, Parks & Son, C. A. Calvird, and A. B. Lovan, for appellants. James D. Lindsay, for respondent.

LAMM, J.

The suit is against Salmon & Salmon as principal and the sureties on a county depositary bond alleged to have been executed in the penal sum of $200,000 to the county of Henry in this state. Begun in the circuit court of Henry county by attachment, the case went on change of venue to the circuit court of Greene county. Answers were filed by three of the sureties — Adamson, Adair, and Gaines. By stipulation the issues on the attachment were to abide the finding on the merits. At a trial before the honorable James T. Neville, judge of the Greene circuit court, without the aid of a jury, the issues were found for plaintiff, the attachment sustained, damages assessed at the sum of $63,000, and judgment rendered for the penal sum of the bond to be satisfied by the payment of said damages with interest at 6 per cent. From that judgment, on due preliminary steps, defendants Gaines, Adamson, and Adair appeal.

The bond, with indorsements, is as follows:

"Know all men by these presents, that we, Salmon & Salmon, a copartnership, composed of G. Y. Salmon and H. W. Salmon, bankers of Clinton, Missouri, as principals, and G. M. Casey, G. Y. Salmon, C. W. Gaines, W. W. Adamson, Wm. Adair, J. R. Barker and H. W. Salmon, as sureties, hereby acknowledge ourselves to owe and stand indebted to the county of Henry, in the state of Missouri in the full sum of two hundred thousand dollars ($200,000.00) for the payment of which well and truly to be made we bind ourselves, our heirs, executors, administrators and assigns by these presents; signed and dated this 4th day of May, A. D. 1903.

"The condition of the above obligation is such that whereas the said Salmon & Salmon, bankers of Clinton, Missouri, were on the 4th day of May, 1903, said day being the 1st day of the regular May term, 1903, of the said county court of the said county of Henry aforesaid, selected as the county depositary of said Henry county upon and in consideration of a bid of 2 1/3 per cent., interest per annum upon the daily balances of all money said Henry county shall have on deposit with said Salmon & Salmon, bankers of Clinton, Missouri, payable monthly, the same being the highest and best bid of interest for the said money, for the term of two years next ensuing after the said 4th day of May, 1903, and until sixty days after the time fixed by law for another selection as provided by article six of chapter ninety-seven of the Revised Statutes of Missouri, 1899, [Ann. St. 1906, p. 3343] entitled `County Depositary.'

"Now, if the said Salmon & Salmon, bankers of Clinton, Missouri, shall faithfully perform all the duties and obligations devolving by law upon them as such depositary and shall pay upon presentation all checks drawn upon them by the County Treasurer of said Henry county whenever any funds shall be in said depositary and shall faithfully keep all funds of said county, including funds belonging to school districts in the said county of Henry, and shall account to the same according to law, then this obligation shall be void, and of no effect, otherwise to remain in full force and effect.

                                        "Salmon & Salmon
                                        "G. M. Casey
                                        "G. Y. Salmon
                                        "C. W. Gaines
                                        "W. W. Adamson
                                        "William Adair.
                                        "J. R. Barker.
                                        "H. W. Salmon.
                   "Filed May 7, 1903.
                        "Harry A. Stewart, County Clerk.
                   "Approved this 1st day of June, 1903.
                        "Joseph F. Boyd, Presiding Judge."
                

The petition counts on the theory that notice was published for bids; that bids were received and opened, and that of the banking firm of Salmon & Salmon accepted on the first day of the regular May term, 1903, of the county court of Henry county, whereby that firm of bankers offered to pay 2 1/3 per cent. per annum upon the daily balances of all moneys plaintiff had on deposit, and was selected as county depositary. Thereupon the foregoing bond was executed and was approved in due time, and Salmon & Salmon was designated as (and became) the county depositary of Henry county to receive and hold all the funds belonging to said county for a period of two years and as provided by law. The breaches assigned are that said bankers failed and refused to pay upon presentation all the checks drawn upon them by the county treasury of Henry county, Mo., upon the funds kept in said depositary; that Salmon & Salmon failed to faithfully keep all the funds of said county, including the funds belonging to the school districts, and failed to faithfully account for the same as by law and the terms of the said bond they were required to do; and that on the 20th day of June, 1905, by reason of Salmon & Salmon being insolvent and in a failing condition, their said bank was taken in charge by the Secretary of State, and is no longer a going concern. The answer of Adamson, Gaines and Adair is as follows: "Come again the defendants W. W. Adamson, C. W. Gaines, and Wm. Adair, and for their joint and several answer to plaintiff's amended petition in this cause, admit that they signed the instrument of writing sued on; admit the copartnership and insolvency of Salmon & Salmon; deny each and every other allegation contained in said amended petition; and aver that whatever loss, if any, of plaintiff's fund accrued and whatever damage, if any, accrued to plaintiff under some depositary bond given prior to the signing of the instrument sued on and given by other parties than these defendants and having fully answered these defendants pray to go hence with their costs." The replication tendered the general issue on the affirmative matter in the answer. It having been represented to us by counsel that this suit involves not...