Village of Hallock v. Pederson

• Decision Date: 04 August 1933
• Docket Number: 29,230
• Citation: 250 N.W. 4,189 Minn. 469
• Parties: VILLAGE OF HALLOCK v. OSCAR JORGEN PEDERSON AND ANOTHER
• Court: Minnesota Supreme Court

250 N.W. 4

189 Minn. 469

VILLAGE OF HALLOCK v. OSCAR JORGEN PEDERSON AND ANOTHER

No. 29,230

Supreme Court of Minnesota

August 4, 1933

Action in the district court for Kittson county to recover of the treasurer of plaintiff village and the surety on his official bond money of the village deposited by the treasurer in a bank which became insolvent and for which he has failed to account. The case was tried before Julius J. Olson, Judge who made findings for plaintiff against both defendants in the sum of $7,109.31. From the judgment entered pursuant thereto defendant National Surety Company appealed. Reversed and remanded.

SYLLABUS

Municipal corporation -- village treasurer -- liability on official bond.

1. The village treasurer and the appellant surety on his official bond were not relieved from liability for the money of the village deposited in a bank that failed, for there was no compliance with 1 Mason Minn. St. 1927, § 1841.

Municipal corporation -- village treasurer -- liability on official bond -- interest.

2. Under the facts of this case interest cannot be recovered of the surety until notice of the breach and demand to make good the default of the treasurer.

Doherty Rumble, Bunn & Butler, for appellant.

P. H. Konzen, John Matt Brendal, and A. D. Bornemann, for respondent.

OPINION

DIBELL, Justice.

Action to recover of the defendant Pederson, the treasurer of the village of Hallock, in Kittson county, and of the defendant National Surety Company, the surety on his official bond, the amount for which the treasurer failed to account to the village. There was a judgment for the plaintiff against both defendants in the sum of $7,109.31. The defendant surety company appeals. The defendant Pederson does not appeal.

1. The defendant surety company executed a bond in the sum of $10,000 which recited that the defendant Pederson was elected village treasurer

"for a term of one year from the 6th day of April, A.D. 1925, and until his successor is elected and qualified, and is about to enter and qualify upon the duties of said office.

"Now, Therefore, if the said Oscar Jorgen Pederson shall faithfully and impartially in all things, during his continuance in said office, perform and discharge the duties thereof without fear, favor, fraud, deceit or oppression and render true account of and properly apply all moneys and property of every kind that shall come into his hands by virtue of his holding said office and pay over and deliver such moneys and property without delay to the officer entitled by law thereto, then this obligation shall be void, otherwise to remain in full force and effect."

This was substantially in compliance with 2 Mason Minn. St. 1927, § 9687.

The statute, 2 Mason Minn. St. 1927, § 1841, provides that the council of any village or of any city of the fourth class under certain conditions may designate a legal depository; and, upon compliance therewith, there is no personal liability upon the treasurer. It reads:

"The council of any village, or of any city of the fourth class, may designate as a depositary of city or village funds such national, state, or private banks as it may deem proper. Each shall give bond to the municipality, in at least double the amount authorized to be deposited therein, to be approved by the council, conditioned to repay all sums deposited therein upon proper demand therefor, and for the performance of such other duties as the council may require. And such council from time to time may require the city or village treasurer to deposit all or any part of the public funds in his hands in such banks, and to withdraw the same when so directed. No such deposit shall be made for a time extending beyond the term of the council then in office, and all the terms and conditions of deposit shall be set forth in the resolution designating the several depositaries, which resolution shall be filed with the clerk or recorder. The treasurer shall not be liable on his bond for any money so deposited by direction of the council, and lost through the failure, bankruptcy, or other default of such bank. All interest accruing upon such deposits shall belong to the city or village."

On April 7, 1925, at the request of Pederson the following motion was made and carried by the village council:

"On motion duly made, seconded and carried, the First National Bank of Hallock, and Kittson County State Bank, Hallock, Minn., were designated as depositaries of the village of Hallock."

Neither of the banks gave a bond.

The defendant Pederson testifies as to the following conversation:

"Shortly after the St. Vincent bank failed I got nervous as to the responsibility for the money intrusted me as village treasurer, and I went to Mr. Konzen and asked him what to do to protect myself in case anything should happen to any of our banks. Mr. Konzen, he stated that I should go before the village council and have them designate the banks as a depository, and that all liability on me -- and that no liability would be on me as treasurer then.

Q. "And Mr. Pederson, pursuant to that conversation that you had with Mr. Konzen and in connection with his recommendations, did you request the council to pass a resolution designating certain depositories?

A. "I went before the council at one of their meetings in 1924 -- I think it was their August meeting -- and asked them to protect me in case of any bank failure should happen.

Q. "Were you assured by the council at that time that such proceedings would be taken?

A. "They passed a resolution to that effect."

It was evident, as found by the court, that there was not such compliance with 1 Mason Minn. St. 1927, § 1841, as to relieve the defendants. The contemplation of the statute is that if the treasurer is relieved of liability there shall be a bond by the depository banks which would save the municipality from loss. In a particular instance a depository bond might be the better, and it might be more easily determined whether the bond at any particular time was sufficient. The trial court expresses the view that the treasurer was entirely sincere and thought he was saved from personal liability; and that the officers of the village treated with him as if there were a proper depository bank with proper sureties and safeguards. In fact there are a few things that seem to indicate that that was the understanding for instance, the treasurer made some of the deposits under direction of the common council in the bank. While a defense is sought to be made that there was an order for deposit with the banks, it is not very seriously claimed that there was one so complying with the statutes as to relieve the defendants. When the bank closed on October 12, 1925, things seemed to have gone on about as usual. Pederson continued as treasurer. The amount owing from the bank was ascertained, and on February 16, 1926, shortly before the expiration of the official year, it was found that the net amount on deposit, less two small offsets and including interest items, was $9,677.13. No one seems to dispute this, and the president and clerk of the village certified that Pederson was its duly elected and qualified treasurer and authorized to make the necessary proof of claim, which he did make. On May 22, 1926, the first ten per cent dividend on the indebtedness of the bank was paid to Pederson and applied to the village; on April 11, 1927, a second dividend of $967.71 was paid and applied to the village; on October 5, 1929, a third dividend of $967.71 was paid; and on June 27, 1931, a fourth dividend of $967.71 was paid, making a total of $3,870.84 which...