State ex rel. Drury v. Drury

• Decision Date: 31 October 1865
• Parties: STATE TO USE OF ANDREW M. DRURY, Plaintiff in Error v. LAWSON G. DRURY et al., Defendants in Error.
• Court: Missouri Supreme Court

36 Mo. 281

STATE TO USE OF ANDREW M. DRURY, Plaintiff in Error

v.LAWSON G. DRURY et al., Defendants in Error.

Supreme Court of Missouri.

October Term, 1865.

Error to Montgomery Circuit Court.

For statement of facts, see opinion.

The following are the instructions asked by the plaintiff and refused:

1. If Drury was a member of the firm of Watkins & Drury, and did, in the year 1854, carry the money of his ward, A. M. Drury, into said firm, either as a loan or as a part of the capital stock of said firm, then that was a conversion of the funds in his hands as guardian, and a breach of his bond.

2. If Drury put the money in the firm of Watkins & Drury, a firm of which Drury was a member, and there was no special contract with the other member of said firm to pay interest, and said firm in fact did not pay interest on said money, then that was a breach of his bond.

3. If Drury, in the year 1854, used or appropriated the money of his ward to his own use, without first obtaining the leave of the County Court of Montgomery county and the assent of his securities, then that was a breach of his bond, and the plaintiff is entitled to recover the damages sustained by reason of said unlawful conversion.

J. B. Henderson, for plaintiff in error.

I. The bond sued on is conditioned that the defendant Lawson G. Drury shall faithfully discharge his duties as curator. (R. C. 1845, p. 551, § 23; R. C. 1855, p. 827, § 3.)

II. If the act putting the money into the firm of Watkins & Drury without security and without leave of the court was an act not sanctioned by the law as it then stood, the condition of the bond was broken at the moment of investment and a right of action accrued; and if through the consequences of this act the money thus invested was ultimately lost, the plaintiff is entitled to recover the amount of damages sustained by such wrongful investment. (R. C. 1845, p. 68, §§ 35-6-7; id. p. 550, § 17; 1 R. C. 1855, p. 825, § 18, & p. 120, § 39.)

III. The pendency of a suit on the second bond is no bar or obstacle to the prosecution of this suit, for a right of action may well exist on both bonds. The curator may have broken the condition of both.

IV. If the act of March 13, 1854, loaning the money to or investing it in the firm of Watkins & Drury, was an act of misconduct on the part of the curator-- one not in accordance to the law regulating the disposition of such funds--then no settlements made by the curator after giving the second bond can affect the right of the ward to sue on such original breach and recover the damages sustained in consequence thereof. If such were the case, the curator would enjoy the advantage of making evidence in his own behalf, and thus curing a violation of his contract by a false statement of his own. The cases, therefore, cited by defendants' counsel in 27 and 34 Mo., were never intended to sustain such a position.

Dyer, for defendants in error.

I. The plaintiff will not be permitted to go behind the settlements of the county court, to show that there was no money in the hands of the guardian at the time the second bond was given. The settlements in the county court are judgments, and are binding upon the securities. (Taylor v. Hunt's Exec'r, and others, 34 Mo. 205; State to use of Griffith v. Holt, 27 Mo. 340, and authorities there cited; Mitchell v. Williams, 27 Mo. 399, and authorities there cited.)

II. The court below rendered a judgment against the principal and his securities on the second bond for the amount of money, and for the same breaches that they seek to recover on in this case. The plaintiff is entitled to but one judgment.

III. The records show that the amount ascertained to be due the ward in the settlement of the guardian in 1857, at the time and before the first bondsmen were released, was carried forward by the guardian in his subsequent settlement (and after the execution of the second bond and the release of the securities of the first) as so much on hand, and was by the county court in its judgment found correct.

HOLMES, Judge, delivered the opinion of the court.

This was a suit upon a curator's bond against the principal and his securities, founded upon breaches which occurred during the period of their liability, and before the securities were discharged from any further liability for the failure or misconduct of their principal, in consequence of a new and additional bond, with new securities, having been ordered and given to the satisfaction of the county court. There was ample evidence tending to establish several of the breaches alleged during the period of the liability of the defendants.

It appeared that the curator had converted the funds of his ward to his own use, by investing them in the business of a mercantile partnership of which he was a member, without taking security of any kind, and without the leave of the court or the consent of the securities, but that he had made annual settlements with the county court having jurisdiction of such matters; that when he was required by the court to give a supplemental bond, and at the time when the new bond was given, his last settlement showed a balance in his hands amounting to $6,121.61; and that, at the next term after the new bond was given, another settlement was made showing a balance of $6,510.01 against him. This balance was demanded by his successor, who had been duly appointed, and payment was refused. The correctness of the accounts thus settled was not disputed.

It further appears that a suit had been brought by the successor, in the name of the State to the use of his ward, against the principal and his securrties on the second bond, grounded upon breaches alleged to have taken place after the second bond was given, and chiefly upon the failure of the removed curator to pay over the balance ascertained to be due by his last settlement, and that a judgment had been obtained against them for the amount. The defence had been set up in the suit, that the money shown by the last settlement to be due was not then actually in the hands of the curator, but that the whole amount had been wasted during the period of the first bond. This defence appears to have proved unavailing.

At the close of the evidence on the trial of the cause, instructions were asked by the plaintiff to the effect that the investment of the funds in the partnership business, with or without a special contract to pay interest, or an appropriation of the funds by the curator to his own use without the leave of the court and the assent of the securities, was a conversion of the funds and a breach of the bond which made the defendants liable. These instructions were refused, and the verdict being for the defendants, there was a motion for a new trial, and the case comes up by writ of error.

It is contended, on the part of the defendants, that the settlements of the curator were judgments, and conclusive in exoneration of the securities on the first bond, and that the plaintiff here, having obtained one judgment upon the second bond, is not now entitled to have another upon the first bond for the same breaches.

It is to be observed, first, that it clearly appears by the record, that the breaches assigned in the two suits are not entirely the same. Those alleged in the former suit consisted merely in the refusal or failure of the removed curator to account for and pay over to his successor the balance in his hands as ascertained by his last settlement. In this suit, the first two breaches assigned are indeed essentially...