People v. Breyfogle

Baldwin, J. delivered the opinion of the Court Field, C. J. concurring. Suit was brought against Breyfogle and his sureties on the bond of Breyfogle as County Treasurer of Alameda county, for a considerable sum of money for which he was in default. The bond is as follows: “ Know all men by these presents, that whereas Charles C. Breyfogle, of Alameda county, in the State of California, was duly elected Treasurer of said county of Alameda at the late general election, held on the second day of September, A. D. 1857; Now, therefore, we the undersigned, acknowledge ourselves jointly and severally bound unto the State of California in the following sums, respectively: E. A. Harris as surety in the sum of $5,000; Albert Lockwood in the sum of $2,500 ; Lemuel Wilson as surety in the sum of $1,000; George W. Boone, surety in the sum of $2,000; Clement Columbet as surety for $5,000; William P. Toler as surety in the sum of $1,000; Hezekiah P. Jones as surety in the sum of $5,000 ; Samuel B. Martin as surety in the sum of $5,500; Andrew J. Coffee as surety in the sum of $5,000 ; William H. Davis as surety in the sum of $5,000 ; Dennis Sullivan as surety in the sum of $1,000 ; Joseph Black as surety in the sum of $1,000; Benjamin F. Rynders in the sum of $2,000 ; E. D. Brown as surety in the sum of $2,000. To the payment of which said several sums we respectfully bind ourselves, our heirs, executors and administrators, jointly and severally, firmly by these presents. Sealed with our seals and dated this twenty-second day of September, A. D. 1857. “ The condition of the above obligation is such, that if the said Charles C. Breyfogle shall pay over all moneys according to law which shall come into his hands, for State, county and other purposes, and shall faithfully and promptly discharge all the duties- of his said office that are now or may hereafter be enjoined on him by law, then the above obligation shall be null and void; otherwise the same shall remain and be in force and effect in law.” [Here follow the names.] The sureties named justified, and the following indorsements were-made on the bond: [508] “ Official, 1857.—Bond of C. C. Breyfogle, Treasurer of Alameda county.” “Filed this 26th day of September, A. D. 1857. H. M. Vesey, Clerk.” “Approved, October 5th, 1857, by the Board of Supervisors. H. M. Vesey, Clerk. By J. A. Amerman, Deputy Clerk.” I. The defendants demurred to the complaint which set out this bond and breaches thereof, and assign for error the overruling of the demurrer. The first and main point made on the demurrer is, that the complaint shows no liability upon the part of the sureties ; the point of this objection being that the bond thus set out does not show any obligation upon the part of Breyfogle to pay money. We think this ground cannot be maintained. The language of the instrument is: “ We, the undersigned ” bind ourselves, etc. It is true that each surety appends to his name the amount for which he is bound as surety; but the language of the instrument leaves no doubt that the principal was bound in the full amount of the several sums contracted to be paid by the sureties. The bond is to be taken in all of its parts. In the first part it recites that “ whereas Breyfogle was duly elected Treasurer of Alameda county, now we the undersigned ar& jointly and severally bound,” etc., “ in the following sums respectively: E. A. Harris as surety in the sum,” etc. Now, with whom was Harris jointly and severally bound ? Not the other sureties, for each one had stipulated for his several obligation and liability. The irresistible inference is, that the surety was bound with the principal, one of “ the undersigned,” who executed the bond. The counsel for the appellants have cited cases to show that a surety is entitled to stand upon the precise terms of his contract, and that no liability beyond that to be deduced from the terms of the contract is to be raised against the surety by implication. (9 Wheaton, 702; 15 Peters, 208; 11 Cal. 215.) But the answer to this argument is, that nothing is attempted to be raised against the sureties by implication, but that their liability rests upon the fair meaning of the words of their obligation. We apprehend that the true meaning of the cases is, that no strained construction is to be given to the obligations of sureties, and that it is [509] not permissible to go beyond the fair import of the terms they employ in order to fasten upon them a liability. But in respect to their contracts, the rule of construction obtains which accords a rational interpretation to the language of their agreements, so as to reach the meaning which the terms used denote. If but two of the sureties signed this bond, there could be no doubt of the meaning; for example, if the bond ran thus: “ The undersigned, Breyfogle as principal, and Harris and Lockwood as sureties, agree, jointly and severally, to pay the following sums: Harris, as surety, $1,000 ; Lockwood, as surety, $1,000 ”—the conclusion would be from this language that Harris and Lockwood were bound each for $1,000, not jointly and severally with each other, but with the principal. The words “jointly and severally,” used in this connection, have a definite and unquestionable signification. They do not apply to the sureties inter sese, for each surety indicates by the language he uses that he is to be severally bound as respects the other sureties, in the sum annexed to his name ; but he is jointly bound with some one, and that one is the principal; and the principal also binds himself jointly and severally, and this obligation must be with the sureties. Giving the fair meaning to the terms employed by these parties, and the conclusion seems to us irresistible that the principal and these sureties bound themselves to pay the sums in the bond, each surety for himself in the sum annexed to his name, and the principal for the aggregate of all these sums. The cases of The City of Sacramento v. Dunlap and People v. Buster are widely different in the facts from this case. 2. The point that there was no approval of the bond as required by law, if it could in any event be held good, is not supported by the record. It is averred in the complaint that the bond was approved by the Board of Supervisors. By the Act of March 27th, 1850, concerning the office of County Treasurer (Wood’s Digest, 712) that officer is required to execute a bond to the acceptance of the Court of Sessions, and by a subsequent act the duties of this character, devolved by previous statutes upon the Court of Sessions, were transferred to the Board of Supervisors. This Act of 27th of March, 1850, is subsequent to the general act imposing the duty of approving bonds of county officers upon the [510] County Judge, and' as the act is special, must be considered as superseding the more general provisions of the first in this regard. The bond having been accepted by the Board of Supervisors, the fact of acceptance must carry with it an approval as to the penalty and to the form and sufficiency of the sureties. There was no error in giving interest on the money from the time of the defalcation. Judgment affirmed.