Larson v. Engebretson
Decision Date | 13 June 1936 |
Docket Number | 6407 |
Citation | 267 N.W. 660,66 N.D. 549 |
Court | North Dakota Supreme Court |
Appeal from District Court, Traill County; Daniel B. Holt, Judge.
Action by E. B. Larson and others against Ole Engebretson and others. From a judgment, Carl Arnegard and others appeal.
Affirmed.
Syllabus by the Court.
1. Following School District v. Stomberg, 61 N.D. 6 236 N.W. 728, it is held that under section 714a7, 1925 Supplement to the Compiled Laws of 1913, the duration of a statutory depository bond, unless renewed as provided in said section, is limited to 4 years from the date of its execution and delivery.
2. It is the duty of township supervisors to designate a public depository for township funds, to require of the depository the statutory depository bond, and, before the expiration of 4 years from the date of the execution and delivery of the said bond, to require a new or a different bond, and a failure to require a new or a different bond, as provided in section 714a7, 1925 Supplement to the Compiled Laws of 1913 is negligence on the part of the said township supervisors, and they are liable for any loss of public funds occasioned thereby.
Acker & Shafer, for appellants.
Delivery of a bond is essential, but filing or depositing with the county auditor is not necessary to bind the sureties. 18 C.J. 586; 4 R.C.L. 54.
Statutes requiring bonds to be approved by certain officials are not for the purpose of protecting the obligors on the bond, but are aimed to protect the public, to insure solvency, and to create evidence of an unimpeachable character of the fact of their execution. American Book Co. v. Wells, 83 S.W. 622; Board of Comrs. v. State Bank, 66 N.W. 143; Board of Comrs. v. Gray (Minn.) 63 N.W. 635; State v. Cornwallis State Bank, 84 Mont. 297, 275 P. 265; Davidson County v. Western Nat. Bank (S.D.) 235 N.W. 370.
Provision requiring the official approval of a bond is merely directory, and hence an irregularity or entire failure in this respect does not affect the validity of the bond. 9 C.J. 25.
Obligation of sureties on an official bond is not dissolved by failure of the governor to approve and endorse, although a statute of the state providing for such bonds requires the approval and endorsement to be made. Auditor v. Woodruff, 2 Ark. 73, 33 Am. Dec. 368; Green v. Wardwell, 17 Ill. 278, 63 Am. Dec. 366; Holt County v. Scott (Neb.) 73 N.W. 681; Dickey County v. Gesme, 51 N.D. 272, 199 N.W. 873.
Where parties voluntarily enter into a contract in order that they and others for whom they are sureties may have advantages which come from the contractual relations, and thereafter reap these very same advantages, they cannot be heard to deny the validity of the undertaking into which they entered. School Dist. v. Stomberg, 61 N.D. 6, 236 N.W. 728; Emmons County v. Pleppe, 61 N.D. 536, 238 N.W. 651; Gardner v. Donnelly (Cal.) 24 P. 1072.
Bond given by state bank to secure school district deposit constitutes a valid obligation of sureties, notwithstanding absence of statutory authority. Bayard City School Dist. v. Vanatla (Neb.) 242 N.W. 435; Farmers State Bank v. Bronson (Minn.) 234 N.W. 594; Floyd County v. Ramsay (Iowa) 230 N.W. 404; Lyman County v. Whitbeck, 54 S.D. 317, 223 N.W. 204.
Where the statute required a bond to secure a deposit of public moneys and in effect to comply with the statute an undertaking rather than a bond is given, the same will be enforced as a common-law bond. Farmington v. Reisinger (Minn.) 218 N.W. 444.
Burdick & Burdick, for respondents.
The time limit fixed by statute must be read into the bond. Under a bond of this form the sureties are liable only for funds deposited with the bank during the term for which the bond was given, but they continue liable for such funds until they are paid, although payment may not be demanded till after the term has expired. School Dist. v. Stomberg, 61 N.D. 6, 236 N.W. 728; Divide County v. Baird, 55 N.D. 45, 212 N.W. 236; Emmons County v. Kleppe, 61 N.D. 536, 238 N.W. 651.
An officer who, without legal excuse, failed to perform a ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such duty. State v. Ruth, 9 S.D. 84, 68 N.W. 189; Wilson v. New York, 1 Denio, 595.
A requirement of the law that an officer shall exact a bond from contractors engaged on public works involves a ministerial duty for the neglect of which or the failure to incorporate provisions required by law he is liable in damages at the suit of the party injured. Burton Mach. Co. v. Ruth, 194 Mo.App. 194, 186 S.W. 737; Fogarty v. Davis, 305 Mo. 288, 264 S.W. 879; State v. Title Guaranty Co. 27 Idaho 752, 152 P. 189; Buhl Highway Dist. v. Allerd, 41 Idaho 54, 238 P. 298.
Where the duty is required by law and is of a public nature, the law is a sufficient demand, and an omission to perform is refusal. Chumasero v. Potts, 2 Mont. 252.
Plaintiffs bring this action as taxpayers of Bloomfield township, Traill county, North Dakota against the defendants as officers of said Bloomfield township for negligence in the handling of public funds in the Peoples State Bank of Hillsboro, which bank in April 1921 was designated as a public depository. A depository bond, with personal sureties, in the sum of $ 1,500, dated April 29, 1921, was furnished by the depository bank. On September 14, 1926, a second depository bond in the sum of $ 6,000 with personal sureties, who were the directors of the depository bank, was furnished by said bank. This later bond was in the custody of the clerk of the board of Bloomfield Township. Neither bond was ever renewed, and from April 1921 until April 11, 1932 the Peoples State Bank of Hillsboro continued as the sole depository for the funds of that township, which were entirely general funds. On April 11, 1932, the Peoples State Bank became insolvent and passed into the hands of a receiver.
There was a trial of said action to the court without a jury, and findings of fact and conclusions of law favorable to the plaintiffs were made by the trial judge, except as against Ole Engebretson, treasurer, and Andrew Wilson, clerk of said township, and as to them the said action was dismissed. The attorneys for the plaintiffs and defendants stipulated that the amount involved was $ 1,089.15. Judgment was accordingly entered for that amount together with interest, from which judgment the defendants duly appeal and request a trial de novo.
This provision in the bond clearly shows it is intended as a statutory bond. It continues as follows:
It is the contention of appellants that this last provision makes the bond a continuing liability upon the part of the sureties, subject to the condition in the bond permitting the sureties to limit their liability arising out of deposits by a written notice to the obligee of said sureties' election so to do at least thirty days prior to such date; that the obligors on the bond never exercised or enforced the condition by...
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