Fourth National Bank v. Spinney

Vann, J. The question whether Cornwell ceased to be a bookkeeper while he was employed by the bank was submitted to the jury, who were instructed that if he was virtually removed from that position and promoted to another, which increased the liability of the defendants as his sureties, the plaintiff could not recover; but that if he was continued as a bookkeeper all the time, even if other duties were superadded, the defendants were liable. It is now insisted that the evidence received sufficiently established, and, with the evidence excluded, would have conclusively established that Cornwell, during the period when he converted the property of the bank, was not a bookkeeper, but a loan clerk or assistant *565 cashier. Assuming that this position is correct, the question is raised whether the condition of said obligation permitted the appointment of Cornwell to another office in the bank without affecting the liability of the sureties. The main reliance of the defendants in contending that they were discharged by the appointment of their principal to a higher office is the case of N. M. B. Assn. v. Conkling (90 N. Y. 116), but we think that there is a controlling distinction between that case and the one now before us. The recital of the bond in the Conlibmg Case, and also the condition, when strictly construed, relate to the duties of a bookkeeper. FTo appointment to another office was in contemplation, hut simply a temporary assignment to additional duties. The court said : “ There are no words binding the sureties in case of the appointment of their principal to any other office. * * * This is a ease where the general words subsequently used must be controlled and limited by the recital.” The general words relating to the assignment to the duties of “ any other office, trust or employment relating to the business ” are joined to the specific words, relating to the duties of a bookkeeper, by the word “ and,” indicating connection therewith, and, when the context is considered and the rule as to strict construction applied, subordination thereto. Hence the guaranty was held to relate wholly to the duties of a bookkeeper, because the general words of the condition were limited by the recital. But in this case the condition, instead of being united by the word “ and,” is divided by the word “ or,” and the second portion is as specific as the first. The part which immediately follows the disjunctive particle indicating an alternative, applies to the contingency of a new appointment to a distinct office. This is emphasized by the use of the word “ also ” in connection with the covenant for faithful performance. The condition thus becomes disjunctive, instead of conjunctive, as in the ConliLing Case, and the recital, assuming that there was hut one, neither applies to nor controls the alternative clause. In this way only can due effect be given to the intention of the parties, who clearly contemplated a new *566 appointment to another office, and distinctly provided for it. The entire condition, including the recital, is but a single sentence. By the alternative form of the condition the sureties undertake that their principal shall faithfully perform his duties as bookkeeper, to which position he has been appoi/nted, “ so long as he shall continue in that capacity; or if ” their said principal “ shall be appointed to any other office, duty or employment * * * he shall also faithfully perform ” the duties of that position. Then follows a general clause relating to “ such other duties as may from time to time be assigned ” to him. Thus the obligors had in view, according to the language used by them, that the principal might serve the obligee in more than one capacity. The second branch of the alternative clause distinctly provides for that event, and the expression “or if the said Richard H. C.ornwell shall be appointed to any other office ” may properly be regarded as a further recital. "While the first recital relates to what has been done, the second relates to what may be done, and the contingent appointment is as carefully provided for as the actual appointment. There are two distinct conditions, the one providing for an accomplished fact and the other for a contingency. FTeither can be disregarded without perverting the intention of the parties. Unless this construction is given to the instrument, its effect will be the same as if the alterna tive clause had been omitted, yet both clauses are equally the words of the obligors, who express their intention to answer for their principal as much by the one as by the other. Thus, as was said by one of the learned judges of the General Term, “the case is brought directly within the reasoning of the” GonTding Case. We think that the condition of the obligation was broken, even if the principal was appointed to another office and that the evidence excluded was, therefore, immaterial. As bearing generally upon the liability of the defendants and illustrating the subject already discussed, see R. C. Bank v. Elwood (21 N. Y. 88); N. Y. L. Ins. Co. v. Clinton (66 id. 326); H. M. Co. v. Farrington (82 id. 121). *567 The consideration for the instrument is found in the continuous employment of the principal by the bank, which was clearly within the contemplation of the parties, as their written words show. He was employed in the first instance as a bookkeeper, and then, as it is claimed, in another capacity, and both positions were recognized and provided for. After examining all of the exceptions that appear in the record, we think that the learned trial judge committed no error that is available to the defendants, and that the judgment should be affirmed.