Stoner v. Keith Cnty.

• Decision Date: 06 May 1896
• Citation: 48 Neb. 279,67 N.W. 311
• Parties: STONER ET AL. v. KEITH COUNTY.
• Court: Nebraska Supreme Court

48 Neb. 279

67 N.W. 311

STONER ET AL.

v.KEITH COUNTY.

Supreme Court of Nebraska.

May 6, 1896.

Syllabus by the Court.

1. A public officer must discharge all the duties pertaining to his office for the compensation allowed by law, and will not be allowed compensation for extra work unless it is authorized by statute. State v. Silver, 2 N. W. 215, 9 Neb. 88;Bayha v. Webster Co., 24 N. W. 457, 18 Neb. 131.

2. The words “on all moneys collected by him” (the county treasurer), in section 20, c. 28, Comp. St. 1889, in relation to fees, refer solely to such taxes as he has collected from the taxpayers. Taylor v. Kearney Co., 53 N. W. 211, 35 Neb. 381.

3. A county treasurer is not entitled to a commission or collection fee on funds, the proceeds of sales of bonds paid or delivered to him as such officer.

4. In an action on the bonds of a county treasurer the county pleaded the reception by him of the proceeds of the sales of certain bonds, the disbursement of a part of the funds, and the failure to turn over to his successor in office a portion of such money. The treasurer and his bondsmen admitted the receiving the money, but as to his failure to turn any portion thereof over to his successor in office the answer was a general denial. The county introduced proof showing that the treasurer charged a per cent. of the amount of the proceeds of the bonds as collection fees, which sum he retained, and did not pay to his successor. Held, under the issues joined by the pleadings, to be sufficient to show a failure to comply with the obligations of his bonds, and that it did not devolve upon the county to further show that the treasurer had received all the fees to which he was by law entitled for his services; that, if there was any sum or sums due the treasurer from the county, the legitimate subject of set-off or counterclaim in his favor, or which he had allowed to remain in the county treasury in payment of the amount claimed by the county as before indicated, they were matters constituting a defense, and should have been pleaded as such and proved.

5. Sureties on a bond are released by a material alteration of the instrument evidencing their obligation, made without their knowledge and consent.

6. The signing of a bond of a county treasurer, after its approval by the county board, by additional sureties, the same being done without the knowledge and consent of the sureties who had attached their signatures thereto prior to the time it was approved, avoided the obligations of the bond as to such prior sureties, and released them from liability thereunder for any subsequent failure or default of the principal in the fulfillment of the conditions of the bond.

7. Held, further, that the parties who signed the bond subsequent to its approval, as additional sureties, must be presumed to have known what would be the effect of such signing, including the discharge of the prior sureties, and they became bound and liable for any subsequent failure or default of the principal in the bond to perform its obligations.

8. A bond of an officer, which is presented to a county board, and approved by it, binds all parties who signed it as sureties, notwithstanding that they may have signed the instrument conditionally, if the bond is perfect on its face, and the board possessed no notice of the conditional signing, and there was nothing to raise the duty of inquiry as to the manner of the execution of the bond.

9. Under the provision of section 7, c. 10, Comp. St. 1895, “the official bonds of all county, precinct and township officers shall be approved by the county board,” in approving bonds the board acts as a body. The approval is not the act of a member or individual members thereof as persons; it is the act of the board as a body.

10. A county treasurer's bond is to be approved by the county board.

11. The knowledge of one member of a county board, at the time of its approval by them, of the conditional signing of a county treasurer's bond by the sureties, not shown to have been imparted to the board, is not knowledge of or notice to the board of such fact.

12. An additional or second bond was executed, delivered, and approved during the term of office of a county treasurer. Held, that there was sufficient consideration therefor.

13. It is not competent to change or vary the terms of a written contract by parol evidence.

14. A county treasurer, at the close of his term of office, must pay over to his successor all moneys in his hands belonging to the county, or for which he is liable to account. If there has been no proof of any particular date at which it is claimed that the money was misappropriated by a county treasurer, or other proof than that he failed to account for and pay over to his successor at the close of the term of office all funds for which he was liable to account, it will be presumed to have occurred at the close of the term, and the liability accrues as of such time.

15. Where the bond of a county treasurer was presented and approved at or prior to the commencement of his term of office, which bond was signed by additional sureties during the term, and also an additional bond given and approved, and the default or failure, if any, of the principal in the discharge of the duties of the office occurred at the close of his term, it was proper to join all the sureties as defendants in one action on the bonds.

16. The evidence held to warrant the trial judge in instructing the jury to return a verdict in favor of the county against certain of the defendants named in the instruction.

Error to district court, Keith county; Neville, Judge.

Action by the county of Keith against Samuel A. Stoner and others on an official bond. There was a judgment for plaintiff against certain defendants, who bring error. Affirmed.

Grimes & Wilcox, for plaintiffs in error.

J. R. Brotherton, for defendant in error.

HARRISON, J.

At the general election held in Keith county, November 8, 1887, Samuel A. Stoner was elected to the office of treasurer for the term commencing January, 1888, and terminating January, 1890. He presented to the county commissioners his official bond, signed by himself as principal, and by H. L. McWilliams, H. L. Gould, J. M. Houghton, W. H. Wood, and O. T. Carlson as sureties, which was duly approved, and the officer elected took possession of and assumed the duties of the office. On this bond there appears the following: “Signed as additional surety, Sept. 11th, 1888. George Beyerle. T. A. Meyers.” On November 8, 1889, there was executed and approved another bond, which, in addition to the usual recitations and conditions, contained the following statement: “It is understood that this bond is given as additional security.” This instrument was signed by Samuel A. Stoner as principal and H. L. Gould, J. M. Houghton, and H. Carnahan as sureties. During Stoner's term of office as county treasurer he received from the sales of certain bonds moneys belonging to three distinct funds, and from pages of “Ledger A of Keith County, Neb.,” as introduced in evidence, such pages showing the receptions and disbursements of the aforementioned moneys by Stoner as treasurer, it appeared that of them he had charged as collection fees in the aggregate the sum of $1,180, and retained it when he turned the office and moneys and other articles over to his successor. The recovery of this sum of $1,180 was the object of this action instituted against the ex-treasurer and all parties who at any time had signed either of the bonds to which we have hereinbefore referred. A trial of the issues formed by the pleadings filed on behalf of the various parties to the suit was had, and at the close of the introduction of the testimony the presiding judge instructed the jury which had been impaneled to try the cause to return a verdict in favor of the county and against Samuel A. Stoner, H. L. Gould, J. M. Houghton, George Beyerle, T. A. Meyers, and H. Carnahan, of defendants, for the full amount claimed in the petition, which the jury accordingly did; and after motions for a new trial were heard and overruled, judgment was rendered on the verdict, to reverse which the parties whose interests were adversely affected have prosecuted error proceedings to this court.

The first question discussed by counsel for plaintiffs in error is, does the evidence disclose any amount due from Stoner to the county? In his answer, Stoner admitted the reception of the money as alleged in the petition. The county introduced the pages of the ledger, which it was testified was the only book in which any entries were made in regard to these funds, and there was sufficient other testimony to establish that the entries were the accounts of the receipts of the funds by Stoner and their disbursements, and on each page there was an entry showing a sum charged as collection fee. This entry, one witness, who stated he was acquainted with the handwriting of Stoner, testified was, in his opinion, made by Stoner. This particular entry on one of two of the pages of the ledger was under date January 9, 1890, and on the other page, January 8, 1890; and each page also shows a balance of the fund of which it contains the account, paid to Stoner's successor in office. January 9, 1890, it appears, was the date that Stoner's term of office expired. Suffice it to say that sufficient facts were proved to show that Stoner received these funds, disbursed a portion of each, and retained from each a sum stated in the account as a collection fee. Was the treasurer entitled to any collection fees from the proceeds of the bonds? It is not claimed that he had anything to do with the sales of the bonds. It is said, however, in the argument, although it does not appear from the evidence, that Stoner expended this money during and in forwarding the issuance and registration of the bonds from the sale of which the funds were derived. There was no testimony that he had expended any sums...