(dissenting). — I am unable to agree with the conclusion reached by the majority in this case. The legality of this bond is recited in the bond, and the sureties are estopped to deny the facts recited in their obligation, whether the facts be true or false. Brandt, Suretyship (2d ed.), § 42.
Again, this bond was voluntarily given. That being true, if there was no legal violation in giving it, the sureties are estopped from denying its benefits to those who rely upon it. “Actions are sustained on bonds not required by law when executed voluntarily. ’ ’ 1 Dillon, Mun. Corp. (4th ed.), §216. “In such case,” says that authority, ‘ ‘ the obligor voluntarily agrees to make the obligee named a trustee for the person interested in the due performance of the conditions. ’ ’
In Montville v. Haughton, 7 Conn. 543, such bond was sustained and the court in that case said:
“The collector is not required to give a bond; nor are the selectmen authorized to take such a bond. There is, indeed, no law directing that a bond shall be taken in such case; nor is there any law against it. It is not illegal in its nature, nor founded upon any illegal consideration. ’ ’
And so in the case at bar ; the bondsmen were made the trustees of the city for the benefit of those dealing with it under this contract. It is asserted by the majority that though the rule in regard to the voluntary bond, which is now certainly the established law of the country, might obtain, so far as the parties to the bond are concerned, it cannot be enforced in favor of the respondent, who is in no sense a party thereto. I see no reason why this distinction should be made. If it could be enforced by the city, *432there being no such statutory bond provided for, on the ground of estoppel, the same reason ought to prevail for enforcing it in the interest of outside parties who relied upon the conditions of the bond entered into in making their contracts. Their is no reason in justice, that I can perceive, for the distinction; and technicalities, the enforcement of which serves to defeat substantial justice, ought to be disregarded.
I think there is nothing in the formal objection to the bond. The judgment, in my opinion, should be affirmed.