Metro. Loan Ass'n v. Esche
Before: Belcher
Synopsis
Bindings — Evidence—Judgment.—Where there is evidence tending to support a particular finding, the judgment will not be reversed on the ground that the finding is unsupported by the evidence.
Reformation—Mutual Mistake—Ignorance of Contents of Agreement — Omission to Bead. — A written instrument executed by parties between whom there is no special relation of trust or confidence will not be reformed so as to omit a particular clause, on the ground that the same was inserted through the mutual mistake of the parties, when the party against whom the reformation is sought knew of the insertion of the clause at the time of the execution, and the party seeking the reformation might have known such fact had he read the instrument.
Sureties—Bond—Continuing Liability after Burst Term.—A bond executed by an official for the faithful performance of his duties during a particular term of office, and for any succeeding terms for which he might afterwards be elected, is presumptive evidence of a consideration for the undertaking of the sureties to be responsible after the expiration of the first term; and for a defalcation subsequently occurring, an action may be maintained against the sureties on the bond.
Belcher, C. C. This action was brought to recover money misappropriated by Otto Esche, while acting as secretary of the plaintiff, and is based upon a bond given to secure the faithful performance of his duties. The defendants, Charles Meinecke and Henry ¡Neilsen, were two of the three sureties on the bond. The court below gave judgment against Esche for the full amount claimed, and against Meinecke and Neilsen for their proportions of that amount.
Meinecke and Neilsen moved for a new trial, and have appealed from the judgment and order denying their motion;
The facts shown by the record are as follows:—
The plaintiff was organized as a corporation to make loans to its members for the purpose of aiding them in acquiring and improving real estate. By its by-laws the directors were required at their regular annual meeting, which was to be held on the first Monday of March in each year, to elect a secretary, and the secretary so elected was required to “give adequate security in such amount as the board may direct, for the faithful performance of his duties.” The duties of the secretary were to keep precise minutes of all the proceedings of the association and board of directors, and to receive all moneys paid into the association, and pay the same to the treasurer, taking his receipt therefor, on or before the monthly meeting of the directors.
In March, 1875, the defendant, Otto Esche, was elected secretary, and a resolution was passed by the board “that the bond of the secretary, to be given as provided [515]by the by-laws, be fixed at seven thousand five hundred dollars in United States gold coin.”
Esche gave a bond in the sum required, and the defendants, Meinecke and Neilsen, signed it as sureties. The condition of the bond reads as follows:—
“The condition of the foregoing obligation is such that if the said Otto Esche shall well and truly perform all and singular the duties of secretary of said association for and during his official term, and for and during any succeeding terms for which he may be hereafter elected,” etc.
In April, 1875, Esche entered upon the discharge of his duties as secretary of the plaintiff, and he was annually re-elected thereafter and continued to act as such secretary until March, 1883, but never gave a new bond.
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