Trustees of the Richardson School Fund In Attleborough v. Dean

• Decision Date: 18 January 1881
• Citation: 130 Mass. 242
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Trustees of the Richardson School Fund in Attleborough v. George A. Dean & another

130 Mass. 242

Trustees of the Richardson School Fund in Attleborough v. George A. Dean & another

Supreme Court of Massachusetts

January 18, 1881

Argued October 27, 1880

Bristol. Contract on a bond executed and delivered to the plaintiff corporation, on February 23, 1874, by Horatio N Richardson as principal, and the defendants as sureties, and containing the following condition: "The condition of this obligation is such, that if the said Horatio N Richardson, who is elected treasurer of said Trustees of the Richardson School Fund in Attleborough, shall account for the funds of said corporation which are deposited in his hands and keeping, and which come to his hands and possession, as such treasurer, and pay over the same to his successor in said office, and shall faithfully discharge the duties pertaining to his said office of treasurer as aforesaid, then this obligation shall be null and void; otherwise, to remain in full force and virtue."

Trial in the Superior Court, without a jury, before Bacon, J., who allowed a bill of exceptions in substance as follows:

Abiathar A. Richardson, by his last will, made the following devise: "The residue and remainder of my estate, both real and personal, I dispose of as follows: I first direct that the same shall be converted into cash or its equivalent, as soon as may be convenient after my decease, which shall forever constitute a school fund to be used and the proceeds appropriated as herein expressed: The principal (no part of which is ever to be used) shall be loaned out at lawful interest, with good security, on real estate, and the interest thereof only shall be annually taken and appropriated to the use, support or maintenance of the common schools in the Second Precinct, a parish in Attleborough, in which I live, for the benefit of all the schools in said parish, which fund shall be managed by twelve persons belonging to said parish as a board of trustees, who are to be chosen once in three years, and any vacancies which may occur, whenever said parish shall deem proper."

Horatio N. Richardson was treasurer of the trustees of the fund from 1848 until 1850, when the trustees were incorporated by the St. of 1850, c. 297. He was then elected treasurer, and was elected every three years thereafter until his election in 1874. In February 1874, the records of the corporation show the following: "Voted to proceed to the choice of officers for the ensuing term of three years." "Made choice of H. N. Richardson for treasurer." Richardson then gave the bond in suit; and at that time had in his hands and keeping the sum of $ 2210. In February 1877 or 1878, Richardson was again elected treasurer, but he gave no new bond, and the corporation then voted that "the bond of the treasurer be the same as before." Richardson died on January 31, 1879, indebted to the corporation in the sum of $ 2048.12.

The defendants contended that their liability only extended to and was covered by the term of three years for which Richardson was elected in 1874. The plaintiff contended that there was a continuing liability after the expiration of the three years, and that the sureties were liable for the above default of the treasurer.

The judge ruled that the bond was a continuing bond, and that the sureties were liable for the default above named, and found for the plaintiff for the penalty of the bond, and ordered execution to issue for the sum of $ 2257. The defendants alleged exceptions.

Exceptions sustained.

G. Marston, (E. M. Reed with him,) for the defendants.

E. H. Bennett, (J. Daggett & H. J. Fuller with him,) for the plaintiff.

Morton, J. Endicott, J., absent.

OPINION

Morton, J.

There are many cases in this Commonwealth in which questions in regard to the liability of sureties upon official bonds have arisen. It is held that, when the tenure of the office is for a year or any fixed period of time, the sureties upon the bond given for the faithful performance by the incumbent of the duties of the office, are not liable for any defaults of the principal occurring under a new appointment after the year or other fixed period has expired, unless the bond contains stipulations that the sureties shall be liable during any successive terms of office to which the principal may be elected or appointed. This is upon the ground that, by virtue of his reelection, the principal enters upon a new office, which is not contemplated or provided for in the bond. Bigelow v. Bridge, 8 Mass. 275. Chelmsford Co. v. Demarest, 7 Gray 1. Middlesex Manuf. Co. v. Lawrence, 1 Allen 339. Lexington & West Cambridge Railroad v....