State ex rel. Dunklin County v. Blakemore

BLAIR, P. J. This is an appeal from a judgment in a suit against the treasurer of Dunklin County and. the sureties on his bond. The treasurer’s books show a shortage of more than $14,000. Over $6000 of this occurred during his first term. He was re-elected in 1906, and went out of office January 29, 1909. The verdict was for the shortage during his second term and. interest from the date he went out of office. Three defendants were sued as the heirs.of a deceased surety. One of these was not served. The other two proved their ancestor died before suit wás brought and that his estate had been finally settled in the probate court before the trial of the' case. No claim against the estate was made by the State or county. These defendants, Jones by name, asked the court to direct a verdict in their favor. This was refü'se'd. After verdict agairist all defendants, they moved for a new trial. The court [702] set aside the verdict as to defendants Jones, and then rendered judgment in their favor and against the other defendants. Other facts are stated in connection with the discussion of questions to which they are relevant. Judgment. I. It is argued the judgment must be reversed because the court sustained the motion of Langdon and Byron Jones for a new trial. Counsel are correct in the view that there can be but one final judgment and it must dispose of all parties. [Sec. 2097, R. S. 1909; Connelly v. Railroad, 169 Mo. App. 1. c. 281.] The final judgment in this ease does not offend this rule. Every party has judgment either for or against him. It is not contended the judgment in favor of Langdon and Byron Jones proceeded upon any erroneous view of their rights on the merits of their defense. The defense which was sustained applied, to no other defendant. It was made out by record proof or its equivalent. It is settled that if judgment had gone against these and they had appealed, this court, in case their non-liability appeared as a matter of law, must have revérsed the judgment -as to them regardless of the fate of the appeal of the rest. [Carpenter v. St. Joseph, 263 Mo. 1. c. 712.] In many cases this court affirms as to some appellants and reverses as to others. The common-law rule that judgments are entireties is effective only in exceptional cases. [State ex rel. v. Tate, 109 Mo. 1. c. 270 et seq.; Patterson v. Yancey, 97 Mo. App. 1. c. 698.] In this case the liability was joint and several. [Sec. 2769, R. S. 1909.] Respondent might have sued all or any of those it did sue. [Sec. 2772, R. S. 1909; State ex rel. v. Hoshaw, 86 Mo. 193.] Having sued all, judgment against those shown to be liable vjas proper. [Bagnell v. Railway, 242 Mo. 1. c. 20; Crews v. Lackland, 67 Mo. 1. c. 621.] Cases are cited in which all defendants were liable or none was so. These decisions are inapplicable. The case of Hughey v. Eyssell, 167 Mo. App. 564, is peculiar. The action was against two defendants. The [703] trial court directed a verdict in favor of one of these. The jury ignored the direction and found generally for plaintiff. The trial court rendered judgment against one only and in favor of the one for whom it had attempted to direct a verdict. It was held defendants were jointly liable and subject to contribution, and the appealing defendant had “a right to have the question determined whether” the other was “to bear any share of the burden.” One judge dissented. In the case at bar this question was not presented to the trial court by any of the motions. It is unnecessary to discuss the soundness of the rule applied in the Eyssell case. In the circumstances it cannot be held there is in this case any reversible error presented by this contention of appellants. Bond-Urer'S Draiñage BundsCt II. It is insisted the bond does not cover drainage district funds. The condition of the bond is that if Blakemore “shall faithfully discharge the duties of said office of treasurer of said county according ^aws °f State .of Missouri in reeeiving, handling and disbursements of all funds, except school funds of said county, school township and school district funds then this obligation to be void, otherwise,” etc. Section 3752, Revised Statutes 1909, requires the county treasurer to give bond “conditioned for the faithful performance of the duties of his office.” Section 5605, Revised Statutes 1909, requires him to “enter into a separate bond for each drainage district organized in the county . . . conditioned for the faithful disbursement, according to law, of all such moneys as shall from time to time come” into his hands. The bond in suit is not conditioned exactly as prescribed by either of these statutes. Nevertheless, its terms plainly include all 'county funds’except school funds. The obligation to give bond for all these moneys is clear. If not good as a statutory bond, it is good as [704] a common-law bond. It contravenes no public policy, violates no statute, was voluntarily given, and secures, by its terms, moral and legal obligations of the treasurer. The statute provides no form and does not purport to nullify bonds conditioned otherwise than as prescribed. It is good to the full extent of its conditions. [State ex rel. v. O’Gorman, 75 Mo. 1. c. 378, 379; State ex rel. v. Sappington, 67 Mo. 1. c. 533; State ex rel. v. Horn, 94 Mo. 1. c. 165; Barnes v. Webster, 16 Mo. 1. c. 265.] In the cases relied on by appellant it was held that a bond given in one capacity could not be resorted to in case the official defaulted in a distinct capacity. It is suggested the bond could not cover drainage funds of districts organized after the bond was executed. We think this bond is to be held to have' been given in contemplation of whatever the law authorized to be done. Among these things was the organization of drainage districts, of the funds of which the treasurer would become custodian by force of the existing statute. . n e es ‘ III. It is conceded the verdict is for the amount of the shortage during 1907-1908, with interest from the 29th of January, 1909, at which date Blakemore went out of office. It is contended interest did not begin to accrue until suit was filed. The statute (Sec. 3771, R. S. 1909) provides that the treasurer “at the end of his term . . . shall immediately make such Settlement, and deliver to his successor.. in office . . . all money belonging to the county.*’ In Clark County v. Hayman, 142 Mo. 1. c. 434, 435, it was held the failure to comply with this requirement was a breach of the bond and that no order of the county court requiring him to comply was necessary. In other words, the balance in his hands became due by force of the statute. As a consequence he and his sureties are liable for interest from the end of his term. It is unnecessary to decide whether, as is held elsewhere, he is liable for interest from thé time a cohversio'n oCCtirs. [705] ofPPpayment. IY. The treasurer did not deposit the funds separately. He mingled them all in depositing them. The court instructed, in effect, that if Blakemore was indebted to the county and paid it a sum less than the total due and made no application of the payment to particular funds, the county had the right to apply the payment as it deemed best, and the bringing of this suit upon the bond in question “is evidence which will authorize you to find there was an application of the payment to his indebtedness, if any, to all funds other than those covered by the bond sued on.” It is urged (1) a record of, the county court is essential to show application of the payment; (-2) it is not shown the county court ordered this suit brought, and (3) the filing of suit does not tend to prove an application of the payment. In case Blakemore failed to direct the application of the fund, the county had the right to do so. [State ex rel. v. Smith, 26 Mo. 1. c. 231, 233; Henry County v. Salmon, 201 Mo. 166, 167.] Appellants went through the trial without raising any question whether this action was ordered by the county court. . What they assumed throughout the trial, we must assume here. The bringing of the action for the whole deficiency on the bond involved would have bound the county, as an application of payment, in any other proceeding. [Haynes v. Waite, 14 Cal. 446, and cases cited.] It was substantial evidence of the county’s intent to make the application to the funds mentioned in the instruction. [Starrett v. Barber, 20 Me. 1. c. 461.] There is no question of “shifting responsibilities” by the application made. The bond was executed in contemplation of every applicable principle of law, the law of the application of payments as well as any other. [706] Estoppel. [705] V. The court instructed, in substance, that if Blake-more failed to pay over a balance he owed, and if it [706] was found he mingled the several funds so they lost their identity and it became.impossible to tell which fund, if any, was short, “then defendants are estopped to deny that such shortage belonged to the funds covered by the bond sued on,” etc. It is contended (1) estoppel was not pleaded, and (2) was not proved. •There was ample evidence of the facts predicated in the instruction. There was no objection to the’evidence. Though' not pleaded, estoppel was1' available. There was no opportunity to plead it and it was not the basis of the action. [Long v. Coal & Iron Co., 233 Mo. 1. c. 738,] Blakemore testified he mingled the funds and “If'there was any shortage it was impossible for me to tell where-it was;” i. e. in what funds. Ordinarily, whatever estops the principal, estops the sureties. Blakemore was in no position to assert the shortage was in the school funds. He had brought about a condition which rendered it impossible to determine where it was. To permit him to produce this condition and then defeat a suit against him on the ground that respondent could not prove something he had rendered impossible of proof, would be to permit him to profit by his own wrong. Such a defense is not permissible. Public policy forbids recognition of a defense which would make it possible for every county treasurer, by merely mingling funds, to defeat all liability on his bond. The instruction is not open to the objection made. Character, VI. Evidence of Blakemore’s good character was inadmissible. His character was not attacked in such sense, if in any, as to*' render such evidence competent. [Bank v. Richmond, 235 Mo. 1. c. 542, and cases cited.] VII. Certain evidence was offered for a specified purpose. It was rejected. Appellants now contend it was competent for other purposes and it was error to exclude it. Having made their offer and secured a ruling on specific grounds, appellants cannot now con [707] vict the court of error by assigning reasons not given when the offer was made. [Fearey v. O’Neill, 149 Mo. 1. c. 473.] VTII. Other questions are raised, but are. disposed of by the conclusions reached in preceding paragraphs. Affirmed. All of the judges concur; Bond, J., in result.