United States Fidelity & Guaranty Company v. McLaughlin

• Decision Date: 18 October 1906
• Citation: 109 N.W. 390,76 Neb. 310
• Parties: UNITED STATES FIDELITY & GUARANTY COMPANY v. WILLIAM MCLAUGHLIN ET AL
• Court: Nebraska Supreme Court

109 N.W. 390

76 Neb. 310

UNITED STATES FIDELITY & GUARANTY COMPANY v. WILLIAM MCLAUGHLIN ET AL

Supreme Court of Nebraska

October 18, 1906

AFFIRMED.

OPINION

SEDGWICK, C. J.

In the oral argument which was allowed upon the motion for rehearing, and in the brief filed in support of the motion it was strenuously contended that the bond sued upon is not an official bond. In the former opinion herein it is said that whether the condition in the bond limiting its liability to such wrongs of the employee as shall be discovered within six months from the expiration of time covered by the bond is effective as a limitation of liability "depends upon the nature of the position held by the employee, which in fact governs the character of the bond. If the instrument is not an official bond, then it seems that the contention of the plaintiff in error is correct." Upon a reinvestigation of the record we do not find it necessary to determine that question. There appears to be some merit in the contention that such a limitation would not be enforced even in a private contract. The object of the limitation appears to be to secure to the obligor in the contract an opportunity to investigate the circumstances of the alleged default within a short time after its occurrence. It does not in direct terms limit the time in which the action may be brought. If the fraud or dishonesty of the employee is discovered within the time specified, action may be brought thereon at any time within the limitations of the statute. Whether this amounts to an attempt to deprive the courts by contract of jurisdiction to enforce the terms of that contract, or to adjudicate the damages caused by its breach, is a question that it does not appear to be necessary to determine in this case.

We think that it was correctly determined in the former opinion that the defendant is not in a position to contend that the contract in suit is a private bond. It appears that the bond was never filed with or approved by the county board. It was not made payable to the county, that is, the county was not named as the obligee in the bond; and, also it appears from the evidence that one McGuire was duly appointed deputy county treasurer, and gave a bond as such which was approved by the county board, and took the oath of office and was duly qualified. He appears to have succeeded one Manley, who apparently acted as deputy for a few months of the first part of Mr. McLaughlin's term. The statute provides that the county treasurer may have a deputy, and if this statute should be construed as limiting the county treasurer to one deputy, and if it appears that Mr. Waugh was appointed after these deputies were qualified, and the validity of his appointment was brought directly and not collaterally in question, his right to act as such deputy might reasonably be questioned. The bond in suit recites that "Edgar Waugh * * * has been appointed to the position of deputy treasurer in the service of William McLaughlin treasurer, Lancaster county,...