Bromberg v. Fidelity & Deposit Co.

DOWDELL, J. This is a case of a bill filed by one as surety to compel contribution from other sureties. The respondent, appellant here,-Cecil Carter, filed nine pleas to the bill as amended. A hearing was had upon the sufficiency of these pleas, and a decree was rendered by the chancellor decreeing the fifth plea as amended and the seventh plea presented a good defense to the bill, and overruling the other pleas as being insufficient. From tliis decree, Carter, the respondent, prosecutes this ai>peal. The facts stated in the bill as amended, show that one E. B. Lott was elected tax collector of Mobile county, in August, 189(5, and gave bond in the penal sum of $100,-000 for the faithful discharge of his duties as such tax collector. At the November term, 1890, of the city court of Mobile county, the grand jury recommended that he give an additional bond in the sum of $50,000, which he gave on January the 14th, 1897, with O. Burke and others as sureties. Burke subsequently filed an- application in the probate court of Mobile county under section 3124 of the Code to be released as a surety on said last mentioned bond. Upon the filing of this application, the probate judge issued notice to Lott requiring him to give an additional bond in the sum of $50,000. In compliance with such notice Lott, on April 10th, 1897, gave four bonds aggregating $50,000 to take the place of the bond upon which Burke and others were sureties, and which said four bonds were approved by the probate judge. Cecil Carter, the appellant, was one of the sureties on one of the bonds of April 10, 1897. On June 22, 1897, Lott gave another bond in the sum of $50,000 with the Fidelity and Deposit Company of Maryland, the ap-pellee here, as the surety. Lott became a defaulter to the county of Mobile; and the county brought suit against the appellee and recovered a judgment on the 4th day of January, 1899, for the sum of $13,797.69 together with costs, which judgment was affirmed on ap [344] peal to tin's court.' — (124 Ala. 144.). This judgment, together with interest, damages and costs was paid by the appellee, whereupon the present suit was brought by the appellant, Cecil Carter, and other sureties of Lott seeking contribution. It is alleged in the bill that Lott continued in the discharge of the duties of his office as tax collector under the bond on which the appellant was a surety, and that said bond was of force up to and at the time of said Lott’s default. On the former apjieal in this case, taken from the decree of the chancellor on the demurrer to the bill, (Carter v. Fidelity & Deposit Co., 134 Ala. 369), it was then held that the bond on which the appellant was a surety, was a statutory bond, and we see no reason now to depart from that decision. If it be conceded that the notice issued by the probate judge to Lott was not such as the statute required, and one that Lott might have disregarded, yet when he came forward and gave the additional bond in pursuance of the recommendation of the grand jury, and acted under such bond, it does not lie in the mouth of a surety to object to the insufficiency of the notice issued by the probate judge after the principal has defaulted. There is no reason why Lott might not have waived the issuance by the probate judge of the required statutory notice— and certainly he could waive any defect in the form of the required notice — and this he did, and gave the bond in question and acted under it. — Burnett v. Nesmith, 62 Ala. 261. This disposes of the first plea. The substance of the second is, that the bond was executed by appellant as surety without receiving any consideration therefor, and that he was induced to sign the bond by the fraudulent representations of the principal in the bond, the said Lott, that he had an indemnifying bond in a good security company which would fully protect appellant Carter, if he, Garter, signed the bond as a surety, and that these representations -were false. It seems to be a well settled principle that the surety can not defend when sued upon a bond upon the ground of fraudulent representations made to him by the prinei345 pal. — Page r. Krekey, (N. Y.) 21 Law Rep. An. 409, and the authorities cited in the notes. This is in harmony with the spirit of our statute, (§ 3090 of the Code), which is as follows: “A surety on an official bond, or on a bond intended as an official bond, cannot avoid liability thereon, on the ground that he signed or delivered it on condition that it should not be delivered to the proper officer, or should not become perfect, unless it was executed by some other person who does not execute it. The provisions of this section apply to bonds of. State, county, municipal and corporate officers ;• to bonds of executors, administrators, guardians, receivers, assignees and other trustees, and to all bonds and undertaking executed in the commencement or progress of any suit or judicial proceeding, civil or criminal.” The manifest purpose and intention of this statute is to take away from sureties when sued on an official bond the defense that they had conditionally executed and delivered the bond. The statute should be liberally construed. The third plea in substance is, that the bond is without consideration, that it was not executed under any requirement of law; that the Auditor of the State refused to accept it, and, therefore, said bond as to him, appellant, is null and void, and of no effect. The bond was executed under the provisions of Article 7,- Chapter S3 of the Code. Section 3994 of the Code requires that the bond of a tax collector shall be executed in duplicate and approved by the judge of probate. “One .of such duplicates shall be filed and recorded in the office of the judge of probate and the other shall be filed in the office of the Auditor.” The statute does not authorize the auditor to reject or refuse to accept a bond of a tax collector which has been approved by the judge of probate. It simply provides that after the bond has been executed in duplicate and apimoved by the judge of probate, “one of the duplicates shall be filed in the office of the Auditor.” The fourth plea, after averring in substance that the Carter bond is not a statutory bond, and that the bond was not received, but was rejected by the auditor, states [346] tlie proceedings bad, which led up to and resulted in the giving of the bond of $50,000 by Lott with the Fidelity & Deposit Company, as a surety, and then attempts to set up an estoppel, but wholly fails to show anv matter in estoppel. The sixth, eighth and ninth pleas are sufficiently covered by what we have said above in reference to other pleas. Our conclusion is that the chancellor committed no error in the decree appealed from. Affirmed.