Paxton v. State

• Decision Date: 19 December 1899
• Docket Number: 10,977
• Citation: Paxton v. State, 59 Neb. 460, 81 N.W. 383 (Neb. 1899)
• Parties: WILLIAM A. PAXTON ET AL. v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

81 N.W. 383

59 Neb. 460

WILLIAM A. PAXTON ET AL. v. STATE OF NEBRASKA

No. 10,977

Supreme Court of Nebraska

December 19, 1899

ERROR from the district court of Douglas county. Tried below before FAWCETT, J. Reversed.

REVERSED AND REMANDED.

John C Cowin, Frank T. Ransom, Robert Ryan and Frank Irvine, for plaintiffs in error:

The court would have been justified in directing a verdict for the defendant sureties on the issue as to the delivery of the bond, and if not so, then certainly the issue should have been submitted to the jury. To render a bond effective as a binding obligation delivery is essential. See Fay v Richardson, 7 Pick. [Mass.], 91; Mills v. Gore, 20 Pick. [Mass.], 28; Powers v. Russell, 13 Pick. [Mass.], 75; Chadwick v. Webber, 3 Greenl. [Me.], 141; Porter v. Cole, 4 Greenl. [Me.], 20 Woodman v. Coolbroth, 7 Greenl. [Me.], 181; Simonton's Estate, 4 Watts [Pa.], 180; Allen v. Getz, 2 P. & W. [Pa.], 310; Whichard v. Jordan, 6 Jones Law [N. Car.], 54; Brown v. Westerfield, 47 Neb. 399; Brittain v. Work, 13 Neb. 347; McPherson v. Meek, 30 Mo. 345; Weed Sewing Machine Co. v. Jeudevine, 39 Mich. 590; Donnelly v. Rafferty, 172 Pa. St. 587; Overman v. Kerr, 17 Ia. 485; Parker v. Parker, 1 Gray [Mass.], 409; Steel v. Miller, 40 Ia. 402; Held v. Bagwell, 58 Ia. 139; United States Wind Engine & Pump Co. v. Drexel, 53 Neb. 771.

The office became ipso facto vacant upon failure of the treasurer to have his bond executed, approved and filed as provided by law. There was no waiver of the requirements of law as to time of tendering, approving and filing the bond. If there was any evidence tending to show such waiver, the issue was for the jury. See Compiled Statutes, ch. 10, secs. 5, 15; State v. Lansing, 46 Neb. 514; United States Wind Engine & Pump Co. v. Drexel, 53 Neb. 771; Holt County v. Scott, 53 Neb. 176; Livesey v. Omaha Hotel Co. 5 Neb. 50; Macfarland v. West Side Improvement Ass'n, 53 Neb. 417; Boehme v. Omaha Hotel Co. 5 Neb. 80; Estabrook v. Omaha Hotel Co. 5 Neb. 76; Pence v. Langdon, 99 U.S. 578.

Under the pleadings there is no estoppel as against the sureties. See Apthorp v. North, 14 Mass. 166; State v. Fredericks, 8 Ia. 553; Marshall v. Hamilton, 41 Miss. 229; Lingonner v. Ambler, 44 Neb. 316; Burke v. Utah Nat. Bank, 47 Neb. 247; Parliman v. Young, 2 Dak. 175.

Exhibit 23--a statement by the auditor purporting to show the balance of moneys and securities for which treasurer Bartley was accountable to his successor on January 7, 1897--was incompetent, and it was error to admit it as evidence against the sureties. See Lee v. Brown, 21 Kan. 458; Stetson v. City Bank of New Orleans, 2 O. St. 167; County of Mahaska v. Ingalls, 16 Ia. 81; Lancashire Ins. Co. v. Callahan, 71 N. W. [Minn.], 261.

In case of a conversion, the restoration of the money or property, while not a defense to the action, goes in mitigation of damages to the extent to which restoration is made. See Squire v. Hollenbeck, 9 Pick. [Mass.], 551; Greenfield Bank v. Leavitt, 17 Pick. [Mass.], 1; Merrill v. How. 24 Me. 126; Bates v. Courtwright, 36 Ill. 518; Tripp v. Grouner, 60 Ill. 474; Nightingale v. Scannell, 18 Cal. 315; Watson v. Coburn, 35 Neb. 492; Coburn v. Watson, 48 Neb. 257; District Township of Viola v. Bickelhaupt, 68 N. W. [Ia.], 914.

References as to effect on all parties of adding names of additional sureties without the knowledge or consent of those who originally signed: Henry v. Coates, 17 Ind. 161; Houck v. Graham, 106 Ind. 195; Hall v. McHenry, 19 Ia. 521; Berryman v. Manker, 56 Ia. 150; Browning v. Gosnell, 91 Ia. 448; Wallace v. Jewell, 21 O. St. 163; Ford v. First Nat. Bank, 34 S.W. [Tex.], 684; Stoner v. Keith County, 48 Neb. 279; Mersman v. Werges, 112 U.S. 139; Stone v. White, 8 Gray [Mass.], 580; Miller v. Finley, 26 Mich. 249; Barnes v. Van Keuren, 31 Neb. 165.

References as to question of shortage in Bartley's first term: Cedar County v. Jenal, 14 Neb. 254; State v. Hill, 47 Neb. 456; In re Treasurer's Settlement, 51 Neb. 116; Bush v. Johnson County, 48 Neb. 1; Whitney v. State, 53 Neb. 287.

The admission in evidence of Exhibit 26--the record of a suit in Lancaster county on the bond of Bartley for his first term of office--presented an issue for the jury as to whether or not there was a defalcation during his second term, and if so, the amount thereof, and it was prejudicial error to exclude from the jury the consideration of that issue. See Snyder v. Chicago, S. F. & C. R. Co. 112 Mo. 527; Ayres v. Hartford Fire Ins. Co. 17 Ia. 176; Kamm v. Bank of California, 74 Cal. 191; Rich v. City of Minneapolis, 40 Minn. 83; Guy v. Manuel, 89 N. Car. 83; Blackmore v. Boardman, 28 Mo. 420; Burgess v. Inhabitants of Wareham, 7 Gray [Mass.], 345; Green v. North Buffalo Township, 56 Pa. St. 110; Harrington v. Inhabitants of Lincoln, 4 Gray [Mass.], 563; State v. Dennis, 39 Kan. 515; People v. Stephens, 71 N.Y. 527; State v. Ober, 34 La. Ann. 361; State v. Taylor, 11 La. Ann. 430.

C. J. Smyth, Attorney General, W. D. Oldham, Deputy Attorney General, and Ed P. Smith, for the state.

References as to question relating to delivery of bond: Holt County v. Scott, 53 Neb. 191; State v. Dunn, 11 La. Ann. 550; Pequawket Bridge v. Mathes, 8 N.H. 139; King County v. Ferry, 19 L. R. A. [Wash.], 500; Sampson v. Barnard, 98 Mass. 359.

Bartley and his sureties are estopped from denying the validity of the bond, and from denying that he was de jure treasurer. See State v. Rhoades, 6 Nev. 352; Blaco v. State, 58 Neb. 557.

Error can not be predicated upon the admission of improper evidence, when it is obvious that the unsuccessful party was not prejudiced. See Terry v. Beatrice Starch Co. 43 Neb. 866; Farmers Loan & Trust Co. v. Memminger, 48 Neb. 17.

References as to evidence: Shafer v. Whiting, 55 Neb. 756; Davis v. Hilbourn, 41 Neb. 35; Hiatt v. Brooks, 17 Neb. 33; Knapp v. Jones, 50 Neb. 490; Morgan v. Durfee, 9 C. L. J. [Mo.], 12; Dryden v. Britton, 19 Wis. 31; Godin v. Bank of Commonwealth, 6 Duer [N.Y.], 76; Stewart v. Simpson, 1 Wend. [N. Y.], 376; Connor v. Giles, 76 Me. 132; Combs v. Hodge, 21 How. [U. S.], 397; Delaware County v. Diebold Safe Co. 133 U.S. 473; Vogel v. Osborne, 32 Minn. 167; Weisbrod v. Chicago & N. W. R. Co. 20 Wis. 442; Isabelle v. Iron Cliffs Co. 57 Mich. 120; Wilkins v. Stidger, 22 Cal. 232; Dennie v. Williams, 135 Mass. 28.

SULLIVAN, J. NORVAL, J. dissenting.

OPINION

The opinion contains a statement of the case.

SULLIVAN, J.

At the general election in 1894 Joseph S. Bartley was elected to the office of state treasurer, as his own successor. On January 3, 1895, he took the oath required by law, and tendered his official bond to the governor for approval. The sureties whose names then appeared upon the obligation were: Nathan S Harwood, F. M. Cook, A. B. Clark, John H. Ames, Charles A. Hanna, Mary Fitzgerald, C. C. McNish and E. E. Brown. The governor did not approve the bond on the day it was presented, but returned it to Bartley, who promised to strengthen it by procuring additional sureties. On January 9, 1895, the bond was again presented for approval with the names of Thomas Swobe, Cadet Taylor and W. A. Paxton added to the names of the original obligors. It was thereupon approved, and on the same day filed for record and recorded in the office of the secretary of state. Bartley, at the end of his second term, was found to be a defaulter, and this action was instituted in behalf of the state to recover of the defendants, as his sureties, the amount of the defalcation. The cause was tried to a jury in the district court of Douglas county, and resulted in a verdict and judgment against all the defendants except Mary Fitzgerald, who succeeded in establishing the defense of incapacity to contract at the time her signature was obtained. The verdict against the sureties, who are here complaining, was rendered in obedience to a peremptory instruction from the trial court; and it becomes, therefore, our duty, in examining the questions presented for decision, to assume the existence of every material fact which the evidence for the defendants establishes or tends to prove.

The original sureties contend that they are not bound, because the bond was not accepted and approved on or before January 3, which was the first Thursday after the first Tuesday in that month. Brown further insists that the additional sureties signed without his consent, and that he thereby became released from his obligation. Paxton, Swobe and Taylor claim that the bond was already effective when their signatures were obtained, and that their undertaking is void for want of a consideration to support it. We will consider these defenses together. The petition alleges that the bond was delivered to the governor on January 3, and on that day filed for record in the office of the secretary of state. It is also alleged that the bond was afterwards returned to Bartley to obtain the signatures of additional sureties, and that on January 9 it was again handed to the governor, who then approved it and filed it with the secretary of state. These averments of the petition are traversed, and, after a careful examination of the record, we quite agree with the statements of counsel for the defendants, that the evidence conclusively shows that the bond was not filed in the office of the secretary of state until January 9. Prior to that date no contract relations existed between the state and any of the defendants herein growing out of the signing of the bond in suit. A bond, like a deed, is without validity until it has been delivered. Without delivery it is void. See United States Wind Engine & Pump Co. v. Drexel, 53 Neb. 771, 74 N.W. 317; Duer v. James, 42 Md. 492; Donnelly v. Rafferty, 172 Pa. 587, 33 A. 754; Fay v. Richardson, 7 Pick. 91. As ...