National Surety Corp. v. Morgan County
National Surety Corp. v. Morgan County
Opinion of the Court
Morgan County obtained a judgment against Arlie Gilliam, former sheriff of that county, and National Surety Corporation, which was surety on Gilliam’s county revenue bond for the period beginning June 1, 1964, and terminating May 31, 1965. The judgment provides recovery in favor of the county against the ex-sheriff and his surety based upon an admitted shortage in the 1964 tax accounts of the sheriff due the county in a sum approximating $9,000. No dispute about the amount due is presented, nor does the ex-sheriff appeal from the judgment.
The surety appeals, asserting that it is absolved from liability because the county (through its fiscal court and county judge) discovered a dishonest act or omission of the sheriff which occurred before the sheriff defaulted in his payment of funds due the county. The exact provision of the bond relied on by the surety is:
“All liability of the Surety hereunder for future acts and omissions of the principal shall terminate at the end of the period shown in the Whereas clause above, unless terminated earlier upon the happening of any of the following events: (a) discovery of the Obligee of any dishonest act or omission of the principal, * *
It is admitted that the surety was never informed of the irregularity in Gilliam’s accounts and accounting which had come to light at the meeting on June 17, 1964. The bond upon which the present judgment is predicated purports to have been signed, sealed, and dated June 1, 1964. The default of the sheriff occurred after the execution of the second bond, and there is no question that such default is covered by the bond unless the surety is entitled to release from liability on the basis that the obligee discovered a “dishonest act or omission” before the default upon which the present judgment is based.
We will not explore the question of whether the “arrangement” between the sheriff and the superintendent of schools was a “dishonest act or omission” within the meaning of the bond provisions and in the circumstances we have related. Neither are we disposed to re-examine the question of a possible estoppel against the county on the theory that the surety would not have signed Gilliam’s bond if the county had made appropriate disclosure to the surety. Maryland Casualty Co. v. Magoffin County Bd. of Ed., Ky., 358 S.W.2d 353.
The bond upon which the judgment rests was executed pursuant to KRS 134.-230.
“Under the authority of Connelly v. American Bonding & Trust Co., 113 Ky. 903, 69 S.W. 959, 24 Ky. Law Rep. 714, such bonds are controlled by these sections of the statute, ‘and must be read in connection therewith.’
*793 “By an act of 1908, which is section 186d, Kentucky Statutes, it is provided that such bonds, 'shall he limited in a definite penal sum, which shall be determined and fixed by the officer or officers whose duty it is to approve the bond.’ It will thus be seen that the statutory obligation, which is really a part of the contract obligation for public officials, is that the officer will faithfully discharge the duties of the office, or else the surety will pay the loss occasioned thereby, not to exceed the sum fixed in the bond. We find no authority for any other contract limitation.”
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“We are of the opinion that the bond was executed in the light of the statutes referred to and should be read in connection therewith, and any limitation in the bond in derogation of the statutory requirements is not binding as to the city. And the city having sustained the loss as ascertained by the commissioner and adjudged by the lower court, and this loss resulting from the failure of the principal, a public official, to faithfully discharge the duties of the office, the surety is liable.” Id. 172 S.W. 941.
Of like import is National Surety Co. v. Commonwealth ex rel. Coleman, 253 Ky. 607, 69 S.W.2d 1007. The same principle was recognized in Maryland Casualty Co. v. Magoffin County Bd. of Ed., Ky., 358 S.W.2d 353, in which Bankers’ Surety Co. v. City of Newport, cited and quoted above, was mentioned with approval.
It is obvious that the purpose of the bond in question is to assure faithful payment to the appropriate public agency of public revenues collected by the sheriff. To permit a built-in “self-destruct” clause to defeat a surety’s liability on such a bond would frustrate the salutary purpose of the bond. Moreover, to allow such an escape clause to be applied retrospectively after a judicial determination of when and if the obligee had discovered a “dishonest act or omission” would render chaotic the very fiscal functions which should be maintained in exact order. For the reasons stated, it is our conclusion that the bond provision upon which appellant relies is ineffective and fails of absolving the surety from liability. The trial court did not predicate its judgment upon the reasons we have advanced, but the result reached was a proper one.
The judgment is affirmed.
. It may have been executed under KRS 134.250, but the record is unclear regarding this, and the same result would obtain in either case.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.