The Trustees of Sch. v. Otis

• Decision Date: 31 January 1877
• Parties: THE TRUSTEES OF SCHOOLS, etc.v.ALBERT L. OTIS et al.
• Court: Illinois Supreme Court

85 Ill. 179

1877 WL 9518 (Ill.)

THE TRUSTEES OF SCHOOLS, etc.

v.ALBERT L. OTIS et al.

Supreme Court of Illinois.

January Term, 1877.

WRIT OF ERROR to the Circuit Court of McLean county; the Hon. THOMAS F. TIPTON, Judge, presiding. This bill was filed in the McLean county circuit court, by the trustees of schools of township 24 north, range 2 east, 3d principal meridian, against Albert L. Otis and his sureties, to so reform his official bond, as treasurer of that township, that his sureties might be liable for the default of the treasurer. As written, the bond is made to “the board of trustees in said county,” in the penal sum of $25,000, and bound Otis, as treasurer of township 24 north, range 3 east, in said county, to faithfully discharge the duties of such office.

The principal allegations of the bill are, that at the time of the execution of the bond, it was the agreement and understanding defendant should execute a bond, payable to the board of trustees of township 24 north, range 2 east, 3d principal meridian, with the condition annexed, the principal should faithfully discharge the duties of such office, and “that, by mutual mistake on the part of said board of trustees who accepted and approved said bond, and on the part of the said parties who executed said bond, the said bond, in the penal part thereof, failed to state fully who were the payees of said bond, and in the conditional part thereof designated the range as ‘three’ instead of ‘two.’ ”

The prayer of the bill is, that the bond be corrected, and for a decree against the principal and his sureties for the amount the treasurer is in arrears to the township.

The court sustained the demurrer interposed, and dismissed the bill. Complainants bring the case to this court on appeal.

Messrs. WILLIAMS, BURR & CAPEN, for the plaintiffs in error.

Messrs. STEVENSON & EWING, and Mr. W. S. COY, for the defendants in error.

Mr. JUSTICE SCOTT delivered the opinion of the Court:

Whether a court of chancery will assume jurisdiction to reform an official or other bond against sureties, is a question upon which the authorities are not harmonious. The point has never been directly decided by this court, but on first impression we are inclined to adopt the doctrine of those cases that declare, the extent of the obligation of a surety is to be determined by the agreement he actually signs, and that it can not be varied, changed or enlarged by any decree of court, as founded on the better reasoning, and more fully sustained by authority. One reason that lies at the foundation of this series of cases is, that no equities arise in favor of a party seeking a reformation of a bond not binding at law, against a mere surety, who has received no consideration for the agreement it is alleged he intended to make, but did not. The surety may stand upon the terms of the bond he has executed, and if that does not bind him, upon what equitable principle can it be said his agreement shall be reformed, so that he shall be made to bear the burden that would otherwise fall on the party seeking relief?

Under our Statute of Frauds, no man can be charged upon a promise to answer for the debt, default or...