State ex rel. Rowe v. Britton

• Decision Date: 12 June 1885
• Citation: 102 Ind. 214,1 N.E. 617
• Parties: State ex rel. Rowe v. Britton.
• Court: Indiana Supreme Court

102 Ind. 214

1 N.E. 617

State ex rel.Rowe

v.Britton.¹

Supreme Court of Indiana.

Filed June 12, 1885.

Appeal from Montgomery circuit court.

Ballard & Clodfelter, for appellant.

Thompson, Herod & Thompson, for appellee.

Elliott, J.

The bond upon which the relator's complaint is based reads thus: “We, Edward G. Rowe and William Britton, are bound unto the state of Indiana in the sum of ------- dollars, for the payment of which we bind ourselves, jointly and severally, firmly by these presents, sealed and dated this fourth day of October, 1873. If the above bound Edward G. Rowe will faithfully discharge his duties as guardian of the person and property of Henry Rowe, Mary L. Rowe, Edward G. Rowe, and John R. Rowe, minor heirs of Mary Rowe, deceased, then the above obligation is to be void, else to remain in force.” It will be observed that there is no penalty stated in the bond, and this, it is contended by the appellee, renders it ineffective. The relator, on the other hand, contends that the bond is not invalid, but that the principal and sureties are bound to the extent contemplated by law “touching the relation of guardian and ward.”

Section 4 of the act in force at the time the bond was executed required of the guardian a bond; and section five provided: “Such guardian's bond shall not be void on account of any informality, illegality, or other defect, either formal or substantial, nor on account of any defect, informality, illegality in the appointment of such guardian; but shall have the same force and effect as if such appointment had been legally made and such bond legally executed.” Rev. St. 1876, p. 588. This statute is as broad and comprehensive as it was possible for the legislature to make it, and it makes all bonds effective, no matter what omissions are found to exist. It holds sureties liable for the faithful discharge of the duties of the guardian, and makes them responsible for the losses arising from a breach of duty. The omission of the penalty does not invalidate the bond; the bond still holds the surety responsible for the acts of the guardian. The failure to prescribe the penalty leaves the surety's liability to be ascertained by determining the duty of the guardian, and the loss resulting from the failure to perform it. The failure to name the penalty does not avoid the bond; it simply leaves the measurement of the recovery to be ascertained by finding the loss resulting from the failure to perform the duties enjoined by law. As there is no penalty named, there is no limit to the responsibility or to the amount of the recovery, except that it cannot exceed that contemplated by law, and that is ascertained by looking to the statute, and ascertaining the property of the wards which the guardian is chargeable with. The law is a silent factor in every contract. It is an element that can always be excluded, but can never be excluded without express words. But here the case is peculiarly strong. The law expressly provides that no defect shall avoid the bond, but that, whatever its terms, it shall secure the performance of the duties imposed upon the guardian. Thus speaks the statute in plain terms, and we can do no less than give effect to the statute. By omitting to name the penalty the guardian was not relieved from any duty, nor the surety from any responsibility; for the law defines the duty, and the surety undertakes that it shall be performed. This is the plain declaration of the...