Douglass v. Ferris

Herrick, J. For the reasons set forth in the opinion of Mr. Justice Tap-pan in the court below the judgment appealed from should be affirmed. In addition to, but in harmony with, the views expressed by the trial court, the following suggestions are made: It seems to me that it was not necessary for the plaintiff to notify the sureties of the dishonesty of his guardian, in order to hold them to the obligation of their bond. They owed more than a passive duty. They should have seen to it that their principal discharged his duty. If they neglected it, they did so at their peril. Forrester v. State, 41 Md. 161; Gillett v. Wiley, 126 Ill. 310, 327, 328, 19 N. E. Rep. 287. A guardian’s duty does not end as soon as his ward becomes of age. He must then make a settlement with his ward, and honestly,account and pay over what is coming to him; and the sureties are responsible that he does so. I cannot assent to the idea that because, when the ward became of age, he has legal capacity to act for himself, the sureties are no longer responsible for the transactions between himself and his guardian in settling the estate. One of the most important duties the guardian owes to his ward is an honest accounting and settlement with him, and that necessarily cannot take place until he is of age; and, instead of being in any sense released by the transactions of the ward with his guardian, it seems to me it is just the time when, if ever, the sureties owe an active duty to see that their principal acts—as they have bound themselves he would act—as an honest man. In my opinion the defendants are in a somewhat different position from' an indorser upon a note or a guarantor of a bond, or any surety who merely binds himself to pay a sum of money or ful [690] fill a contract if his principal does not. Here the sureties guaranty the fidelity •and honesty of the guardian. The obligation is that the principal “ shall ■well and faithfully, in all things, discharge the duty of guardian.” If he Tails in that, they are responsible for the damages the ward suffers through That lack of fidelity. It is something more than warranting his pecuniary ¡responsibility, where, if he does comply with his contract to pay, and the 'creditor by his delay suffers him to become impecunious, so that the sureties ■cannot collect from him, the creditor by his loches has placed the sureties in a position where they cannot make themselves good. Here, as we have seen, the bond was for fidelity and honesty. Acting promptly would not have made him honest. Delay has not made him any more dishonest than he was before. Honesty and fidelity are the main things guarantied, not pecuniary responsibility. But, even upon the ground of delay, I do not see that the defendants have any sufficient reason to be released. The delay caused by the legal proceedings cannot be considered on the question of loches. Laches «can only be predicated upon the time that elapsed from the discovery of the fraud until the commencement of the suit against the principal. Ho inflexible rule can be laid down as to what constitutes loches. It depends upon the ■circumstances in each particular case. The evidence in this case is not before us, but it is fairly to be inferred from the facts found that there were negotiations between the plaintiff and his guardian, and promises to pay by the guardian, so that the plaintiff was kept in constant hope and expectation of a settlement, and a part payment was made. Plaintiff first became aware of the fraud in Hovember, 1880, and immediately made demands upon his guardian for payment. This was promised, but not fulfilled, in February, 1882, a part payment was made, and, no further payment being made, in October, 1882, he commenced his action against his former guardian. I do ¡not think that the delay, under all the circumstances, constituted loches that would release the defendants. There was no extension of the guardian’s time, or valid release of him, by the plaintiff, by which the plaintiff was prevented from prosecuting him upon his obligation to make an account. The fraud practiced vitiated the whole proceeding and settlement, so that it in no way acted as an extension of time or stay of proceedings. Lowman v. Gates, 37 N. Y. 601. Mere indulgence or delay by the creditor to prosecute the principal debtor will not release the surety. Albany Dutch Church v. Vedder, 14 Wend. 165; Supervisors v. Otis, 62 N. Y. 88; Powers v. Silberstein, 108 N. Y. 169, 15 N. E. Rep. 185; Machine Co. v. Farrington, 82 N. Y. 121-131; Bostwick v. Van Voorhis, 91 N. Y. 353. The judgment should be affirmed, with costs and printing disbursements. Putnam, J., concurs.