Community High School v. Muller

The opinion of the court was delivered by Harvey, J.: This is an appeal by the plaintiff from an order sustaining a demurrer to its petition and rendering judgment for defendants in an action upon an official bond. At the general election in November, 1922, C. B. Copeland was [217] elected to the office of trustee of the community high school of Reno county. He duly qualified as such officer, as required by R. S. 72-2603, by taking the oath and giving bond in the sum of $1,000, signed by himself as principal and by Carl Muller and Thomas Keller as sureties, conditioned “that the said C. B. Copeland shall honestly and faithfully perform and execute the-duties of said office required by him by law, during his continuance therein, by virtue of said election, and pay over to the proper person or authority all moneys that may come into his hands by virtue of said office, and deliver to his successor all books, records, papers and other things belonging to his said office which may be so required by law.” Thereafter, and in conformity with the statute (R. S. 72-2605), which provides that at the first meeting in each year of the trustees of plaintiff they shall appoint one of their number as secretary and treasurer, who shall perform the usual duties devolving upon such officers, and shall hold office for one year, and that such treasurer shall give additional-bond as the county commissioners shall deem sufficient, C. B. Copeland was chosen as secretary and treasurer. As such treasurer he gave an additional bond in the sum of $10,000.. Later Copeland absconded, and it was then found that his accounts were in default in the sum of $20,000. The sureties on the additional bond paid the amount thereof to plaintiff, leaving $10,000 which Copeland was still in default. This action is against his sureties upon his bond as trustee to recover the $1,000 named therein. It is argued on behalf of appellant that since it is provided by law that one of the trustees shall be appointed as treasurer, the duties he performs as treasurer are also performed as trustee, and therefore sureties on his bond given as trustee are liable for his default as treasurer. This argument is sound and requires a reversal of the case. He could only be treasurer by reason of being trustee. It was part of his duty as trustee to act as treasurer, if his associates so named him. When he was acting as treasurer he was also acting as trustee, and his default as treasurer was also his default as trustee. We have carefully examined the authorities cited by appellee and do not regard them as being in point. It is true, as pointed out in those authorities, that the liability of a surety is not to be .extended by implication. We are not extending by implication the liability of the sureties upon the bond in this case. It was only by performing the duties of his office as trustee, required of him by [218] law, that he became treasurer and received moneys of plaintiff. This bond sued upon specifically requires that he “pay over to the proper person or authority all moneys that may come into his hands by virtue of said office.” The bond as treasurer is additional to his bond as trustee, not in lieu of it. The judgment of the court below will be reversed with directions to overrule the demurrer to the petition.