Priet v. De La Montanya

California Supreme Court Aug 30, 1889 No. No. 11,531Published

Before: Gibson

AI Brief

AI-generated · verify before citing

Holding. The court held that sureties on an official bond are liable for the principal's failure to perform duties imposed by law during the term of the bond, but they are not liable for misappropriations occurring after the expiration of that specific term. Because the trial court's finding regarding the fund balance at the end of the first term was unsupported by evidence and potentially conflated with the second term, the judgment against the sureties was reversed.

Issues

Whether sureties are liable for a treasurer's duties under the Dupont street act regardless of whether the treasurer acted as an agent of the state or the city.
Whether the sureties on a bond for a specific term are liable for misappropriations occurring during a subsequent term of office.
Whether the statute of limitations for the plaintiffs' action began to run before the final determination of conflicting claims to the warrant.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“the liability of his sureties for the faithful performance thereof remains the same.”

“Sureties on an official bond are liable only for a breach of official duty committed by their principal during the term of office for which the bond was given”

Synopsis

Treasurer’s Bond—Liability of Sureties.—Defendant H. gave a bond as city treasurer for the faithful discharge of official duties then or thereafter imposed on him. As such treasurer he received money arising from the sale of certain street bonds, under Statutes of 1875— 76, page 443, authorizing the widening of a certain street, and providing (section 11) that the treasurer “shall receive and safely keep the same as moneys belonging to said city and county are kept,” and designating a separate fund therefor. A warrant—No. 92—on an award for damages to a certain lot was issued to one A. as owner, without knowledge of plaintiff’s claim of interest therein, but .on the discovery of such claim another warrant—No. 114—was issued to the owner or owners of said lot, and notice thereof given to defendant H. The money was illegally paid by defendant’s deputy on warrant No. 92; and the fund was sufficient to pay only a part of plaintiff’s share under warrant No. 114. Held, that the sureties on the bond were liable for the residue.

Treasurer’s Bond.—Where the Evidence Showed That at the End of the official term for which the bond sued on was given the principal had on hand $24,962.91 in the fund, against which there were no legal demands prior to warrant No. 114 for $10,932, a fineb ing that there was a balance of $1,800 in said fund is against the evidence, if it relates to the first term of the treasurer, and if it relates to the end of his second term, it is beyond the issues pleaded.

Treasurer’s Bond—Limitation of Actions.—Where plaintiffs, whose cause of action depended on warrant No. 114, payment of which could not be enforced until the conflicting claims between them and the lot owner were finally determined, commenced their action within seven months after such determination, though more than four years after the illegal payment by the treasurer, their right of action was not barred by Code of Civil Procedure, section 337, providing that actions upon any contract, obligation, or liability founded upon an instrument in writing shall be commenced within four years.

GIBSON, C. Defendant Hubert was treasurer of the city and county of San Francisco from December 6, 1875, until December 6, 1877, and before entering upon the discharge of his official duties gave the bond in suit, upon which his co-[124]defendants are sureties. Upon the expiration of his term of office he succeeded himself by re-election.

Under the provisions of an act entitled “An act to authorize the widening of Dupont street, in the city and county of San Francisco,” approved March 23,1876 (Stats. 1875-76, p. 443), he, as such treasurer, received from the sale of Dupont street bonds the sum of $966,950 to the credit of the “Dupont street fund.” A lot on Dupont street, belonging to. one David Hunter, in which plaintiffs had a leasehold interest, was, pursuant to the act, taken for the improvement of the street, and the board of commissioners awarded the sum of $10,932 as damages for the taking of the lot, to David Hunter, as owner and on April 20, 1877, issued to him, in his favor, a warrant, numbered 92, for the amount. Hunter, seven days thereafter, indorsed these words: “Received payment, David Hunter,” upon the warrant, and delivered it to Henry S. Tibbey, the secretary of the board of commissioners. At the time the warrant was issued, the board was unaware of the interest of plaintiffs in the lot, but subsequently, on July 9, 1877, having discovered plaintiffs ’ claim of interest therein, it drew another warrant, numbered 114, for the same amount, payable to “the owner or owners” of the lot taken, and in compliance with section 15 of the act of March 23, 1876, deposited the same with the county clerk, and notified defendant Hubert, as treasurer. Both warrants were payable out of the Dupont street fund. The first warrant, No. 92, was afterward illegally presented at the treasurer’s office by Tibbey, and illegally paid to him by a deputy of the treasurer. The plaintiffs, in order to have determined the proportion of the amount so awarded that they were entitled to under said section 15 of the act, brought an action against Hubert, as treasurer, T. H. Reynolds, as county clerk, and David Hunter, and prosecuted the same to final judgment, which was entered on the fifth day of January, 1883, in accordance with the decision of this court rendered therein on appeal (Priet v. Hubert, 62 Cal. 9); in which decision it was also determined that the payment of warrant No. 92 was no defense to the payment of warrant No. 114. On the day after judgment was entered, the then treasurer paid on warrant No. 114 the sum of $1,800, being all that remained in the Dupont street fund. The amount was divided pro rata between plaintiffs and' Hunter—the former receiving the sum

Priet v. De La Montanya

AI Brief

Synopsis

More from California Supreme Court

Related research

AI Brief