Town of Barnet v. Abbott

[128] The opinion of the court was delivered by Redfield, J. This action is debt upon an official bond of the defendant Abbott as town treasurer of the plaintiff town ; and purports to have been executed by said Abbott as principal, and the other defendants as his sureties. The bond declared upon is dated, and purports to have been executed on the 16th day of March, 1877 ; but the report finds that it was in fact executed in December, 1877. The bond names the offices of Abbott; and the signers covenant that he “ shall faithfully execute the offices of treasurer and trustee, to which offices he was duly elected for one year, accounting for all moneys that shall come into his hands,” etc. We thinki f the bond was otherwise well executed, the obligors would be liable to respond in damages for all malfeasance or misfeasance in office, by Abbott during his official term ; “ and account for, and pay over, all moneys received by him during such term, prior, as well as after, the execution and acceptance of the bond.” Attleboro v. Hatch, 97 Mass. 533. II. The report states that the “ sureties signed said instrument in December, 1877 ; that it then bore no seals ; that the sureties never attached any seals to their signatures, nor “ authorized any person to affix them.” It is urged by the plaintiff, that the sureties by their relation to Abbott, and the manner of the transaction, authorized him to affix proper seals, and deliver the instrument as a completed bond. But the fact found, and in the record, is, that “ the sureties authorized no person to affix seals to their signatures.” The sureties testified that they understood, when they signed the instrument, that it was a bond executed to secure the faithful discharge of said Abbott’s official duties as treasurer, for the then current year; and the instrument recites that it “ is sealed with our seals.” This is evidence tending to show that the sureties, when they put the instrument into Abbott’s hands, signed by them, expected that Abbott would make it a sealed instrument when delivered, and such as, on the face of the paper it was represented to be, when they signed it. But this is substantially [129] negated in the report by the finding that “ they authorized no person to affix seals to their signatures.” The seal converts a simple contract into a specialty; and makes it one of different grade and character. And it is as much forgery to convert a simple contract into a specialty without authority, as it is to affix the signatures which create the contract. The plaintiff’s counsel are right in their law, that if the sureties induced the selectmen to receive and treat this paper as a sealed instrument, and rely upon it as such, they are estopped now from calling it in question. But there are no facts stated in the report that would estop the sureties from insisting that their liability is to be measured and determined by the instrument as they made it. It is said they should be held liable, because they put it in the power of Abbott to deliver it to the selectmen as a bond duly executed and sealed. It was, alike, in the power of Abbott to change the tenor of the instrument, and add new stipulations, and increase the liability of the signers. Whether Abbott had done this, or changed the character of the instrument, by affixing seals without authority, the signers who did not consent to the alterations have no liability under it; it becomes entirely vitiated as to them. It has beeu held in this State that, if the holder of a note procure it to be witnessed after it had been executed and delivered, though by a person who saw it signed, it so changes the character of the note, that by such alteration without authority of the signer, it becomes vitiated and void. And we think on .the facts reported, this instrument was substantially changed in legal character after it was executed by the sureties without their consent, and is, therefore, as to them not their deed. III. The report states as to item 1: “ Balance in the treasury March 1st, 1877, 1917.92; that just before the March meeting 1877, the auditors examined Abbott’s account as treasurer, and found there was, or should be in his hands to balance his account, the sum of 1917.92. That no money was shown to the auditors; and that in fact Abbott had no money that could be identified as belonging to the town in his hands, and had in point of fact, before such settlement, used in his own business the money repre [130] sented by such balance.” This balance due from Abbott to balance the treasurer’s account, was not on hand on the 1st of March, 1877, but had been appropriated by him to his own use, before that time ; hence there was no perversion, or devastavit, as to this balance during the official term, covered by this bond. And, aside from this “ balance ” Abbott paid out more money for the town during the year than he received. Abbott having charged himself with the “ balance,” on hand, as found by the auditors; and having induced the auditors to find and state such balance as being in his possession, would, himself, be estopped from averring now the contrary. But as to the sureties, that deficit must stand as the laches of the treasurer prior to the first of March, 1877. The result is that the judgment of the County Court is affirmed as to Abbott, and reversed as to the sureties ; and judgment that they recover their costs.