Bosshard v. County of Steele

Taylor, C. Plaintiff was appointed treasurer of Steele county by the board of county commissioners to fill a vacancy and served as such treasurer during the years 1924, 1925 and 1926. He gave the bond required by statute in the sum of $200,000 executed by a surety com *282 pany. Before making the appointment the county board entered into an oral contract with him by the terms of which the board agreed to pay the premium upon the first $50,000 of the bond, and plaintiff agreed to pay the premium upon the remaining $150,000 thereof. Plaintiff paid the part of the premium so specified for each of the three years. The statute provides: “Before he enters upon the duties of his office, the county treasurer, * * * shall give bond, to be approved by the county board, and in such sum as said board directs.” It further provides: “The county board shall pay the premiums in excess of fifty dollars upon such treasurer’s bond out of the treasury of the county in cases where the surety is a corporation duly authorized by law to be surety.” L. 1923, p. 389, c. 293; G. S. 1923, § 840. Plaintiff brought suit to recover the premiums paid by him which the statute required the county to pay. The amount of these premiums so paid is not in dispute and is found by the court to be the sum of $450 for each of the three years. The court gave plaintiff judgment for the amounts paid in the years 1925 and 1926 but not for the amount paid in the year 1924. • Defendant appealed, claiming that the court erred in ¿warding judgment for the premiums paid in the years 1925 and 1926. Some months later plaintiff took the appeal now under consideration, claiming that the court erred in not awarding judgment for the premium paid in the year 1924. On defendant’s appeal it was held that plaintiff’s cause of action was not predicated upon the illegal contract in which he agreed to pay these premiums, and that he was entitled to recover. Bosshard v. County of Steele, 173 Minn. 283, 217 N. W. 354, where a further statement of the facts may be found. That decision is decisive of this appeal. It is suggested that the payment here in question may be distinguished from the other two on the ground that plaintiff paid it voluntarily. Plaintiff was not a mere volunteer. The statute re *283 quired him to give the bond before entering upon the duties of his office. This requirement was absolute and in no Avay conditioned upon the payment of the necessary expense or any part thereof by the county. He was required to give the bond before taking possession of the office whether the county paid or did not pay. Consequently the primary obligation to obtain the surety and pay the expense incurred therefor rested upon him. Although the statute required the county to bear the major part of such expense, it cannot be said that plaintiff, in making the payment, was paying the obligation of another as a mere volunteer. He could procure and pay for the bond necessary to enable him to qualify for the office, and then look to the county for that part of the expense which the statute required the county to pay. The cause is remanded with directions to amend the conclusions of law to the effect that plaintiff is entitled to recover the sum of $1,300 with interest thereon from July 1, 1926, and to render judgment therefor.