Custer County v. Albien

Kellam, J. This was an action upon the official bond of Edwin H. Flynn, as treasurer of the respondent county. The bond ran to “J. F. Street, F. A. Towner, and Joseph Humphrieus, as commissioners, and their successors in office,” and was in the penal sum of $10,000, “for which payment, well and truly to be made, we jointly and severally bind ourselves in the amount set opposite our respective names,” etc. The condition was: “That whereas, the abpyg-named Edwin H. Flynn was on the 6th day of [485] November, 1889, duly'elected treasurer in and for the county of Custer, in said county, for the term of two years, and is about to enter upon the duties of said office: Now, therefore,” etc. The bond was signed as follows: “Edwin H. Elynn. [Seal.] Dennis Carrigan, $3,500. [Seal.] Martin T. Schoonmaker, $1,000. [Seal.] Henry A. Albien, $1,500. [Seal.] Paul Kleemanj $1,500. [Seal.] Ü-. C. Boland, $1,000. [Seal.] A. P. Smith, $1,000. [Seal.]” The complaint alleged, among other things, the making and delivery of the bond, its due approval, and its breach. The defendants, except Elynn, the principal, who answered separately, and Smith, deceased, answered together, admiting the execution of the bond to the obligees named, and its delivery to the county clerk of the plaintiff county, but denied that it' was approved by the board of county commissioners, and denied its breach, and further set up affirmative matter in defense. The case was tried to a jury, who returned a verdict as follows: “We, the jury in the above-entitled action, find for the plaintiff on all the issues, and assess plaintiff’s damages at ten thousand ($10,000) dollars.” Upon this verdict the court entered judgment against Elynn for $10,000, and against each of the sureties for the amount opposite his name in the bond, and from the judgment so entered Henry A. Albien and Paul Kleeman bring this appeal. It is first objected that the complaint does not state facts sufficient to constitute a cause of action. The objection that the bond is not actionable by the county because the county commissioners and their successors in office are named as obligees, instead of the county, as provided in section 1373, Comp. Laws, is not good. It is very plain, from the recitals of the bond) that it was given and received as the security the statute called for from the treasurer. The commissioners, as the proper agents of the county, in taking it, took it in their names, as such official agents, instead of in the name of their principal, the county. The complaint sets out the facts showing that the county was the real benficiary, and that the bond was given for its protection. This action upon it is brought in the name of the real party in interest. [486] It is not fatal to the bond, nor can it relieve the sureties of their liability to the county under it, that the fiscal officers of the county were named as obligees, instead of the county itself. Town of Plattville v. Hooper (Wis.) 23 N. W. 581; Bay Co. v. Brock, 44 Mich. 45, 6 N. W. 101; Tevis v. Randall, 6 Cal, 632; Mechem, Pub. Off. § 269, and cases cited. But even if there should be doubt of the validity of this instrument as a statutory bond, we see no reason why it is not good as a general or common-law bond, and the principal and sureties bound by its terms, and upon which an action may be brought by the county, as the real party in interest. Id. § 271, and many cases cited. Appellants further insist that the complaint was defective in not specifically alleging- that Flynn was elected to the office of county treasurer. The bond, which the appellants admit they gave, recited and admitted the fact that he had been elected, and was about to enter upon the discharge of his official duties, and that was the reason why they gave the bond. It was not necessary to allege or prove the fact which they had themselves asserted in the very contract sued upon. Defendants wei’e estopped from disputing- it. Mechem, Pub. Off. § 296; Brandt, Sur. § 29; Herm. Estop. § 631, and cases cited; People v. Huson (Cal.) 20 Pac. 369. It is further objected that the verdict is fatally defective because — First, it is not responsive to the issue; second, it does not find the entire issue; third, it varies from the issue; and, fourth, it does not conform to the complaint. We cannot understand how, in a law action, for the recovery of a sum of money, against one or several defendants, a general verdict for the plaintiff, assessing his damages at a certain amount, can be obnoxious to either of the above objections. The issues were the matters in controversy, and a verdict which finds that plaintiff was right as to all of them would seem to be “responsive to the issue.” A verdict which finds all the issues in favor of the plaintiff would seem to “find the entire issue”; where the issue is whether the plaintiff shows itself entitled to recover, as against a defense set up and attempted to be proved, and, if so, how much, and the verdict finds for the [487] plaintiff, and assesses Ms damages at a definite sum, the verdict does not seem to vary from the issue; and where the complaint claims from the defendants a certain sum, on facts, fully stated, and the verdict is for the plaintiff; within that sum, it would seem to conform to the complaint. These defendants answered together, setting up the same facts as the defense of all, against the plaintiff’s claim. The jury found against all these defendants upon all the issues which they tendered. The verdict settled all the facts in controversy in favor of the plaintiff, and there was nothing left but a question of law, towit, what judgment should be entered upon the facts thus settled. The complaint and the answer agreed as to the terms of the bond, and the measure of the liability of each defendant, if the bond should be found good, and no defense proved, and this was precisely the condition in which the verdict left the case. Under these conditions, we think the trial court committed no error of which these appellants can complain, in rendering the judgment which it did, under subdivision 8, § 4901, Comp. Laws. It rendered judgment against each defendant for the amount for which he was liable, the same as though the action had been against him separately. . Under a similar statute it was held in People v. Love, 25 Cal. 520, that “a judgment rendered in an action against the sureties on an official bond, who sign for different amounts, respectively, may be entered up against each surety for the amount for which he is liable on the bond.” The effect of this statutory provision is fully discussed in Pom. Bern. & Bern. Bights, § 406, and the learned author there says: “If a contract shbuld be made by a number of promisors, by which each bound himself in an amount different from that of all the others, the liability would plainly be several and the agreement itself would be embraced within the terms of the section.” Possibly the statute contemplated that a separate and independent judgment should be entered against each defendant, but this is matter of form, more than of substance, and could not prejudice any substantial right of the defendants, and would therefore, even if irregular, be no ground for reversal. It will be understood, of [488] course, that we are‘not touching the question whether, under our statutes, the sureties on an official bond can limit their liability thereon to the specific amount for which they sign. No such question is raised. The county does not complain of this judgment, and the appellants-could not complain that the judgment against them is not as large as it should have been. We do not find any error in the record, and the judgment is affirmed.