Wallace v. The Exchange Bank of Spencer

• Decision Date: 10 December 1890
• Docket Number: 14,210
• Citation: 26 N.E. 175,126 Ind. 265
• Parties: Wallace et al. v. The Exchange Bank of Spencer
• Court: Indiana Supreme Court

26 N.E. 175

126 Ind. 265

Wallace et al. v. The Exchange Bank of Spencer

No. 14,210

Supreme Court of Indiana

December 10, 1890

From the Morgan Circuit Court.

Judgment affirmed, with costs.

J. C Robinson, S. O. Pickens, D. W. Grubbs, M. H. Parks, D. E Beem, W. Hickam, G. A. Adams and J. S. Newby, for appellants.

W. R Harrison, J. H. Jordan and O. Matthews, for appellee.

Berkshire, J. Coffey, J., took no part in the decision of this case.

OPINION

Berkshire, J.

This is an action upon a bond executed by the appellants to the appellee to secure the faithful performance by the appellant Samuel L. Wallace, of his duties as cashier of the appellee bank.

Issues were joined and the cause submitted to a jury and a verdict returned for the appellee, after which judgment was rendered upon the verdict.

Demurrers were sustained to the fourth, fifth and eighth paragraphs of the joint answer filed by all of the appellants except Wallace, and to the fourth paragraph of the separate answer of Wallace, and exceptions reserved. A joint motion for a new trial by all of the appellants except Wallace, and a separate motion by Wallace, were filed and overruled, and exceptions reserved.

There are several specifications of error, but only those which call in question the rulings of the court in sustaining the demurrers to the paragraphs of answer named, and in overruling the motions for a new trial, are urged in argument, hence the others are waived. The only reasons found in the motion for a new trial to which our attention is called by appellants' counsel are those relating to the instructions given and refused. The motion is too indefinite to present any error because of the court's action in refusing or in giving instructions. The court's attention was not called to any particular instruction given which the appellants claimed to be erroneous, nor to any one refused which they were insisting should have been given. Jones v. Layman, 123 Ind. 569, 24 N.E. 363; Ohio, etc., R. W. Co. v. McCartney, 121 Ind. 385, 23 N.E. 258.

In view of what we have said, the only questions left for our consideration are such as arise in consequence of the court's rulings in sustaining the demurrers addressed to the fourth, fifth, and eighth paragraphs of the joint answer of the appellants other than Wallace, and the fourth paragraph of his answer.

There are three paragraphs in the complaint, and the answers named go to the complaint as an entirety. The bond, which is the foundation of the action, reads as follows:

"Know all men by these presents, that we [naming the obligors] are held and firmly bound unto the Exchange Bank of Spencer, Indiana, in the sum of $ 50,000, to pay which we jointly and severally, firmly, bind ourselves, our heirs, executors, and administrators. Sealed with our seals, and dated this 17th day of January, 1880. The conditions of the foregoing obligation is that said S. L. Wallace, as cashier of said Exchange Bank, shall faithfully and honestly do and perform all of the duties of such cashier, in said Exchange Bank, receive, keep, and pay over, on demand, to the proper person, or persons, authorized to receive the same, all moneys and valuables of whatever kind, or description, which he may receive, or which may come into his hands as such cashier, and do and perform all such duties as may be imposed upon him as cashier of said Exchange Bank, then, and in that event, this bond is to be void, else to be and remain in full force and virtue in law. Witness our hands and seals, day and date, above written."

The authority for the bond in suit is found in section 2686, R. S. 1881: "The directors shall elect one of their number president, and shall also elect or appoint a cashier. The president and cashier shall each take an oath or affirmation that he will faithfully and honestly discharge his duties. And the board of directors shall require of the president and cashier to execute separate bonds, with sureties, in such sums as they may deem proper, conditioned that they will honestly and faithfully discharge their several duties as such officers (which said bonds shall be filed in the office of Secretary of State for the benefit of stockholders and creditors of such bank) during their continuance in office."

The bond required by the statute for each of the officers named is one that will cover all of the duties which he is called upon to perform as such officer, and it is to continue in force so long as he continues in office.

The conditions of the bond given by Wallace as such cashier are broad enough to embrace all of his duties as cashier so long as he should continue to hold the position.

The first paragraph of the complaint avers that large sums of money came into Wallace's hands as cashier of the...