I dissent. The gist of this action is the breach of official duty and not fraud. (Norton v. Title Guaranty Surety Co.,176 Cal. 212, 215 [168 P. 16].) The bonds here in question were legal and outstanding obligations against the city, and by virtue of the ordinance which directed their issue, both principal and interest were made payable at the office of the city treasurer "upon presentation and surrender," and the provisions of the charter relating to payment of unliquidated claims against the city "do not pretend to supplant these provisions of the ordinance." (Commercial Savings Bank v. Ewing, cited in the majority opinion.) When, therefore, Dillon as Commissioner of Finance, interjected himself into the matter of the payment of the bonds, he was not acting officially but officiously. The loss to the city was as much the result of the second and wrongful payment as it was the result of the unofficial or officious audit and certification by Dillon. It does not seem to me to present a proper case for holding the sureties liable.
Seawell, J., concurred. *Page 722