Richardson v. Rogers

— Some of the questions made in this case arose in Wilder, Supervisor Fourth Ward agt. Butterfield et al., and the views expressed in that case upon these questions will control the same questions here, and the findings *406thereon will be made in accordance with the conclusions stated in that case.

The defendants Blood and Sawyer interposed, respectively, defenses which must be considered.

It appears by the evidence that they knew that Paddock & Co., bankers, had solicited the collector, Rogers, to deposit the taxes, when collected, with them, and that he had assented to that request, and that while such taxes were being collected he made such deposits.

It does not appear that the plaintiff, who as supervisor took the bond as such and approved of it, ever had any notice of any condition or agreement, or expectation in respect to any other person signing the bond, nor were there any names inserted in it of persons who had not executed it, nor any circumstances to put him upon inquiry as to. any condition or infirmity in respect to the bond at the time of his approval thereof.

The bond was presented to him by Lott Frost, Jr., and it was then approved and filed, and the plaintiff testifies that he never had any conversation with Blood or Sawyer until after the failure of P. & Co., and that they were not present when Frost delivered the bond. The plaintiff had no knowledge of any condition or limitation asked or stated by Blood or Sawyer. He took it in good faith, in the due execution of his duties, and approved of it in his official capacity, and filed it.

Can such conditional signing, or request as a delivery, or condition stated as to its delivery, be held sufficient to relieve Blood and Sawyer, or either of them ?

The learned counsel for the defendant Blood asks a finding of fact that Blood" put his name upon the bond, and left it where he found it, on the counter of the banking office of P. & Co., and that he did not commit it to the custody of any one to use it. The first part of the request is assented^to. The latter part must be qualified with a finding that he left it in the presence of Frost and Rogers, and the circumstances *407justify the implication that he knew and expected they would comply with his request, and thus perfected, that the bond would be used for the purposes contemplated by him and Rogers when he agreed to sign the bond. It is apparent that Frost was the clerk of P. & Co., and acted in their interest in procuring the bond and delivery of it, in furtherance of their desire to obtain the deposit of the taxes.

The learned counsel for Blood and Sawyer might urge upon the court, as a conclusive authority, the case of The People agt. Bostwick (32 N. Y., 445); and, also, Lynn County agt. Farris (14 Am. Reports, 389; reported in 52 Mo., 15); Ayres agt. Millroy (14 Am. Rept., 465). If it be assumed that Frost was the agent of Paddock, the further fact follows that the delivery, if made to Frost, was in effect a delivery to one of the obligees, to wit, Paddock, and the case would then be almost parallel to the case of The People agt. Bostwick. It would still differ in one very important and essential feature. For in that case it appears, by looking into the report thereof, in 43 Barb., that the state officer, to whom the bond was delivered, was informed that Dickinson was to sign the bond, and that the state officer expressly stated that it was good enough as it was, and dispensed with the further execution.

Since the decision of People agt. Bostwick by the court of appeals in 1865, the doctrine then announced has been questioned in the same court, and in the United States supreme court.

As early as 1870, in United States agt. Briggs, in the United States court, judge Davis of the United States court reached a contrary conclusion, and boldly held and stated that a creditor could not thus be made “ the victim of private understandings of which he is wholly ignorant, and has no reason to suspect.” Kentucky state court held the same as the case last cited, and Indiana and Maine have also followed same rule. '

In 1872, the supreme court of the United States, in Duer *408agt. United States (16 Wallace [U. S. Reports], 1), held that “ a bond, perfect on its face, apparently duly executed by all whose names appear thereto, purporting to be signed and delivered, and actually delivered without a stipulation, cannot be avoided by the sureties upon the ground that they signed it on a condition that it should not be delivered unless it was executed by other persons who did not execute it, when it appears there was nothing to put him upon inquiry as to the manner of its execution, and that he had been induced upon the faith of such bond to act to his own prejudice.”

In 1874, in Russell agt. Freer (56 New York, 71), judge Gtboveb cites the 16 Wallace, 1, with approval, and though the precise question here involved was not passed upon by the court of appeals, it does appear that the learned judge who wrote the opinion of the court in the 56 N. Y. entertained views more favorable to the rule laid down in 16 ’Wallace than to the one expressed in 32 N. Y. (People agt. Bostwick).

Gtboveb, J., says that The People agt. Bostwick “ may well be questioned.”

This statement of the cases bearing upon the questions raised by the defendants Blood and Sawyer seems to justify the conclusion that this case is near parallel with the one reported in 16 Wallace, 1, and that the court should therefore follow it, especially as that case and the one in' 56 N. Y. are the later authorities touching this most interesting and important question.

The defense of Blood and Sawyer must therefore be overruled, and they respectively be held liable upon the bond which they signed and suffered to be presented to the plaintiff, and approved by him and allowed to stand unquestioned until the failure of Paddock & Co.

If Blood and Sawyer had been diligent in ascertaining whether their bond had been properly used, and taken steps to be released from it immediately after its delivery to the supervisor, on the 8th of December, 1874, their position would *409have been entitled to more consideration. They slumbered and allowed the' public officer, whose business it was to see that the funds were properly secured to the town before they went into the hands of the collector, to approve of, act and rely upon their responsibility. They must now abide by the consequences which, by their own signing of the bond, have come to them. The reasoning of the court in Duer agt. U.S. (supra,), applies to the case made, and is therefore followed by this court.

Judgment must be given in accordance with the views here expressed and the conclusions reached in the Fourth Ward Case as to the questions there considered which arise in this case, with costs to plaintiff.

Findings to be prepared by plaintiff and served and filed upon three days’ notice after service of a copy of this opinion.