People v. Breyfogle

A bond was executed by defendants running thus: “ Know all men, by these presents, that, whereas, Charles C. Breyfogle, of Alameda county, State of California, was duly elected Treasurer of said county,” etc., now, therefore, we the undersigned, acknowledge ourselves jointly and severally bound unto the State of California in the following sums, respectively: E. A. Harris, as surety in the sum of $5,000; Lemuel Wilson, as surety in the sum of $1,000,” and so on in the names of twelve more sureties, concluding with the usual clause, jointly and severally to pay, etc. The condition was that Breyfogle should pay over all moneys according to law which should come into his hands as Treasurer, etc. The bond was signed and sealed by all the parties: Reid, that this bond shows an obligation on the part of Breyfogle to pay money, and that he and the sureties bound themselves to pay the sums in the bond, each surety for himself in the sum annexed to his name, and the principal for the aggregate of all these sums; the objection that the bond does not pretend to bind the principal being untenable.

The true meaning of the cases holding that a surety may stand upon the precise terms of his contract is, that no strained construction is to be given to his obligation, and that you cannot go beyond the fair import of the terms he employs in order to fasten upon him a liability; but a rational interpretation must be given to the language of his contract so as to reach the meaning of the terms used.

The City of Sacramento v. Dunlap (14 Cal. 421) and People v. Buster (11 Id. 215) differ from this case in the facts.

The Act of March 20th, 1850, requiring bonds of County Treasurers to be approved by the Court of Sessions, being special and subsequent to the general Act of February 9th, 1850, imposing the duty of approving the bonds of county officers upon the County Judge, supersedes this latter act in this respect; and as the power of approval given by the former act was transferred by the Act of March 20th, 1855, sec. 25, from the Court of Sessions to the Board of Supervisors, the power of approval now rests with them.

Where the Board of Supervisors accept the bond of a County Treasurer, such acceptance carries with it an approval of the penalty fixed in the bond and of the form and sufficiency of the sureties, and it need not appear otherwise than by such acceptance that the Board fixed the amount of the penalty, or that sureties enough executed it to make at least two sureties for the whole sum.

In suit on the official bond of a County Treasurer for failure to pay over money, legal interest on the amount from the time of defalcation is recoverable.