State ex rel. Dorwin v. White

Vinje, J. The learned trial court held the bond valid, though the amount of the penalty was not inserted therein, on the ground that, since see. 443, Stats. 1913, requires the approval of the bond by the director and clerk, it places upon them the duty to ascertain the amount of the bond; that they should have done so; that when the amount was ascertained they should, pursuant to the authority given them by the relator and sureties, have inserted it in the bond in the blank space left for that purpose, and that their failure to do so could not prevent relator from legally qualifying. The court reached the correct conclusion upon the facts found. Both the relator and the sureties intended to give, and believed they gave, the statutory bond. They intended and expected that the proper officers would ascertain the amount of the bond as the statute requires in double the amount of funds likely to come into the hands of the treasurer during his term of office, and that the amount when so ascertained would be [175] inserted tberein. The sureties and the relator did all they could to file a legal bond, and had the clerk and director done their duty as contemplated by the statute and those who signed the bond it would in form as well as in fact have been a complete bond. Substance and not the form must control. Where the intent is clear and undisputed, a mere omission to insert words intended and authorized to be inserted cannot be held to defeat a bond which all parties have- treated as valid. Likewise it has been held that a -word not intended to be in a bond and which was inserted by clerical error should be read out of it in order to effectuate the real intent of the parties. Marlatt v. Chipman, 160 Wis. 193, 151 N. W. 249. That one may be bound by an instrument authorized by him to be filled out by another is well settled in this state. Friend v. Yahr, 126 Wis. 291, 104 N. W. 997. The finding that the relator did not abandon the office has such support in the evidence that it cannot be set aside. By the Court. — Judgment affirmed.