Works v. Byrom

• Decision Date: 05 December 1912
• Citation: 22 Idaho 794,128 P. 551
• Parties: C. W. WORKS, Appellant, v. J. E. BYROM, Sheriff, et al., Respondents
• Court: Idaho Supreme Court

128 P. 551

22 Idaho 794

C. W. WORKS, Appellant, v. J. E. BYROM, Sheriff, et al., Respondents

Supreme Court of Idaho

December 5, 1912

COMPLAINT-DEMURRER TO-JUDICIAL SALE-PERSONAL PROPERTY-MEASUREMENT OF WOOD AFTER SALE-AGREEMENT BETWEEN SHERIFF AND PURCHASER-CONDITIONAL PAYMENT-CAVEAT EMPTOR-LIABILITY OF SHERIFF AND BONDSMEN.

(Syllabus by the court.)

1. Held, that the demurrers to the complaint should have been overruled.

2. The rule of caveat emptor generally applies to judicial sales but has no application to the facts alleged in the complaint in this case.

3. Where there is a conditional payment made to the sheriff by the purchaser, at sheriff's sale, with the understanding that if the wood purchased when measured did not measure 600 cords that the sheriff would return to him the price paid per cord for the shortage, held, that said agreement was legal and valid, and that it was the duty of the sheriff to hold said money until the wood was measured, provided such measurement was made and the demand made on him for the money before he was required under the law to make a return of his execution.

4. Under the allegations of the complaint, the sheriff and his bondsmen are liable, provided the wood was measured and the demand made for the return of the money before the sheriff was required under the law to make a return of said sale.

APPEAL from the District Court of the Second Judicial District for Idaho County. Hon. Edgar C. Steele, Judge.

Action to recover under a contract for shortage in wood sold at execution sale. Demurrer to complaint sustained and judgment of dismissal entered. Reversed.

Reversed and remanded. Costs awarded to the appellant.

Wm. E Lee, for Appellant.

The sheriff and his sureties are liable for the misappropriation of funds, in an execution sale, by the sheriff and his deputy. (Work Bros. v. Kinney, 7 Idaho 460, 63 P. 596; 35 Cyc. 1622, sec. 10.)

"If he commits a wrongful act in the discharge of his official duty, his sureties are responsible, and it is within the terms of their contract." (State, Use of Wilson, v. Fowler, 88 Md. 601, 71 Am. St. 452, 42 L. R. A. 849, 42 A. 201.)

If fraud has been practiced upon the purchaser, or if there has been a mutual mistake, not the result of the negligence of the purchaser, the doctrine of caveat emptor does not apply, and the purchaser will be relieved from his purchase. (24 Cyc. 57, sec. 2; Norton v. Taylor, 35 Neb. 466, 37 Am. St. 441, 53 N.W. 481, 18 L. R. A. 88.)

"The purpose of an official bond is to provide indemnity against malfeasance and misbehavior in public office, the misuse of powers belonging to the office, and the assumption, under guise of official action, of powers not belonging to it." (Lee v. Charmley, 20 N.D. 570, 129 N.W. 448, 33 L. R. A., N. S., 275; Work Bros. v. Kinney, supra; Palmer v. Pettingill, 6 Idaho 346, 55 P. 653; 35 Cyc. 1690; Robinson v. Kinney, 3 Idaho 479, 31 P. 815.)

A. S. Hardy, for Respondents.

Our statute by its express provisions recognizes that the purchaser acquires only the title which the debtor had, and the purchaser in making the purchase must buy with that understanding. This is the rule generally. Our statute was taken from California, and the rule of caveat emptor is held to apply in California. (See Boggs v. Fowler, 16 Cal. 559, 76 Am. Dec. 561; Meherin v. Saunders, 131 Cal. 681, 63 P. 1084, 54 L. R. A. 272.)

The doctrine of caveat emptor has been uniformly applied to sales made by a sheriff under execution. (Freeman on Executions, 301, 335; 18 Ann. Cas. 501, note; Wood v. Levis, 14 Pa. 9; Long v. McKissick, 50 S.C. 218, 27 S.E. 636.)

The bondsmen on an official bond are entitled to invoke the rule of strict construction. (29 Cyc. 1454, 1455; Schloss v. White, 16 Cal. 66; Feller v. Gates, 40 Ore. 543, 67 P. 416, 91 Am. St. 492. 56 L. R. A. 630; Governor v. Perrine, 23 Ala. 807; 35 Cyc. 1903-1905; People v. Foster, 133 Ill. 496, 23 N.E. 615; Chandler v. Rutherford, 101 F. 774, 43 C. C. A. 218; State v. McDonough, 9 Mo.App. 63; Hawkins v. Thomas, 3 Ind.App. 399, 29 N.E. 157; People v. Hilton, 36 F. 172; People v. Cobb, 10 Colo. App. 478, 51 P. 523; State v. Moore, 56 Neb. 82, 76 N.W. 474; 24 A. & E. Ency. Law, 1st ed., 897.)

There is no implied authority on the part of the deputy to make contracts for his principal, to hold money on deposit, or to represent or warrant the quantity or quality or title of any property he is selling, and if he does any of these things he can bind only himself. (Lewark v. Carter, 117 Ind. 206, 10 Am. St. 40, 20 N.E. 119, 3 L. R. A. 440; 35 Cyc. 1620, 1624.)

SULLIVAN, J. Stewart, C. J., concurs.

OPINION

SULLIVAN, J.

This action was brought to recover a definite sum of money from the sheriff of Idaho county and the American Surety Company, the company who furnished the sheriff's bond. The existing conditions in this case grew out of an execution sale of cordwood. The cordwood was sold under execution by the deputy sheriff, who, it is alleged in the complaint, announced at the sale that he would sell 600 cords of wood and asked for bids. No bids were offered. After some conversation between the deputy sheriff and the plaintiff, the deputy sheriff then announced that he would receive bids by the cord for all of the wood belonging to the judgment debtor; that he would collect for the wood on the basis of 600 cords, and that if upon measurement it was found there were not 600 cords, the proportion of the purchase price for the shortage would be returned to the purchaser. It is alleged that upon those conditions the appellant made a bid, which was accepted by the deputy sheriff as the highest and best bid. Appellant then paid to the deputy sheriff the amount of his purchase by the cord upon the basis of 600 cords. The wood was thereafter measured and it was found there were only 430 cords. Appellant thereupon demanded of the sheriff the return of the purchase price of 170 cords at the rate paid by the cord. This was refused by the sheriff and this action was brought.

General demurrers were filed to the complaint, which were sustained by the court. The appellant having refused to plead further, judgment was entered, dismissing the action. This appeal is from that judgment. The action of the court in sustaining said demurrers and entering judgment of dismissal is assigned as error.

The main question for determination is whether the sheriff is legally responsible for the acts of his deputy in making said sale as he did.

It appears from the allegations of the complaint that the plaintiff would not have purchased said wood on the basis of 600 cords had the deputy declined to receive the bid and accept the price therefor with the agreement and understanding that the wood should be measured and if it fell short of the 600 cords, the purchase price of such shortage would be returned to the bidder. Then, is the sheriff and his sureties legally responsible for said acts of his deputy? The undertaking of the sheriff is conditioned as follows: "Now, therefore, if the said John E. Byrom shall well, truly and faithfully perform all official duties now required of him by law, and shall well, truly and faithfully execute and perform all of the duties of such office of sheriff required by any law to be enacted subsequently to the execution of this bond, then this obligation to be void, otherwise to remain in full force and effect."

Under the provisions of sec. 293, Rev. Codes, every official bond executed by an officer pursuant to law is in force and obligatory upon the principals and sureties therein for any and all breaches of the conditions thereof committed during the time such officer continues to discharge any of the duties of or hold the office, and whether such breaches are committed or suffered by the principal officer, his deputy, or clerk.

It was held in Foley v. Martin, 142 Cal. 256, 100 Am. St. 123, 71 P. 165, 75 P. 842, that the deputy is not the agent or servant of the sheriff but his representative, and a sheriff is liable for his acts the same as if they had been done by himself. (See, also, 33 Cyc. 1618, sec. B; Work Bros. v. Kinney, 7 Idaho 460, 63 P. 596.)

In the case of State, Use of Wilson, v. Fowler, 88 Md. 601, 71 Am. St. 452, 42 A. 201, 42 L. R. A. 849, the court quotes with approval from Knowlton v. Bartlett, 18 Mass. 271, 274, as follows:

"An official act does not mean what the deputy might lawfully do in the execution of his office; if so, no action would ever lie against the sheriff for the misconduct of his deputy," and adds: "That is to say, if only lawful acts are official acts, then the sheriff is never responsible for the acts of his deputy, since by a lawful act of the deputy no one can be injured in legal contemplation, while...