Stoner v. Keith County
| Decision Date | 06 May 1896 |
| Docket Number | 6501 |
| Parties | SAMUEL A. STONER ET AL. v. KEITH COUNTY |
| Court | Nebraska Supreme Court |
ERROR from the district court of Keith county. Tried below before NEVILLE, J.
AFFIRMED.
Grimes & Wilcox, for plaintiffs in error:
The evidence should have been passed upon bye the jury, and it was error to direct a verdict for plaintiff. (Grant v Cropsey, 8 Neb. 205; Eaton v. Carruth, 11 Neb 231; Johnson v. Missouri P. R. Co., 18 Neb. 690; Houck v. Gue, 30 Neb. 113.)
A material change in a contract without the consent of the surety will release him, though the change may be a benefit to him.
Any unauthorized variation in any agreement which a surety has signed, that may prejudice him, or may substitute an agreement different from that which he came into, discharges him. (
The substituted surety having signed the bond without the knowledge of its alteration, and under the supposition that the other signers were his co-sureties, the bond is void as to him, as he never undertook to become the sole surety. (State v. McGonigle, 13 S.W. [Mo.], 758.)
If the condition, known to the creditor, upon which the surety agrees to become bound, is not complied with, the surety is discharged. (Brandt, Suretyship & Guaranty, secs. 341, 350; State v. Allen, 10 So. Rep. [Miss.], 473; Hessell v. Johnson, 30 N.W. [Mich.], 209.)
Evidence of non-compliance with the conditions of a bond may be given in defending an action on the bond. (Hall v. Parker, 37 Mich. 590.)
There was no consideration for the second bond and it is not binding. (Owens v. Tague, 29 N.E. [Ind. App.], 784; Kansas Mfg. Co. v. Gandy, 11 Neb. 448; Barnes v. Van Keuren, 31 Neb. 165.)
Unless the bond is retrospective, the sureties are only bound for moneys in the hands of the officer when the bond was executed and for that which subsequently goes into his hands. (Mahaska County v. Ingalls, 16 Iowa 81; Bessinger v. Dickerson, 20 Iowa 261; Warren County v. Ward, 21 Iowa 84; Farrar v. United States, 5 Pet. [U. S.], 373.)
J. R. Brotherton, contra:
A public officer must discharge all the duties of his office for the compensation allowed by law, and is only entitled to such fees as are authorized by statute. (State v. Silver, 9 Neb. 88; Bayha v. Webster County, 18 Neb. 132; Taylor v. Kearney County, 35 Neb. 384.)
A county treasurer is not entitled to commission upon the proceeds of bonds. (Territory v. Cavanaugh, 3 Dak., 325; Sandager v. Walsh County, 6 Dak., 31.)
The law presumes that Beyerle and Meyer knew that the effect of their signatures would be to bind them and discharge Goold and the other sureties. (Dickerman v. Miner, 43 Iowa 508; Hamilton v. Hooper, 46 Iowa 515; United States v. O'Neill, 19 F. 567; Shipp v. Suggett, 9 B. Mon. [Ky.], 5.)
The sureties should be held liable unless the conditional signing was known to the approving authority. (
Notice to a member of the county board of a conditional signing was not notice to the board.
There was a sufficient consideration for the second bond. (Gilbert v. Board of Education, 45 Kan. 31.)
If the defalcation took place prior to the giving of the second bond, it was incumbent upon the sureties to show that the default actually occurred before they became sureties.
The books of the treasurer introduced in evidence show that on the day his term of office expired he was charged with the amount he should have turned over to his successor. Under this state of facts the burden of proving the contrary is upon the sureties. (Bruce v. United States, 58 U.S. 437; United States v. Stone, 106 U.S. 525; United States v. Eckford, 42 U.S. 250.)
The liability of the sureties dates from the time the treasurer surrendered his office to his successor. (Commissioners v. McCormick, 4 Mont. 115.)
The sureties on both bonds were properly joined in one action and jointly held. (Holeran v. School District, 10 Neb. 406; Powell v. Powell, 48 Cal. 234; Gilbert v. Board of Education, 45 Kan. 31.)
The facts and issues are stated in the opinion.
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. Goold, 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:
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. Goold, 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. Goold, 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 an error proceeding 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 for such purposes, and, as we have said, the testimony did disclose that the charges were for collection fees, and not for expenses of any nature or description.
Section 20, chapter 28, Compiled Statutes, 1889, in relation to fees provides as follows: ...
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