Yawger v. American Surety Co.

Ingraham, P. J. (dissenting):

One Grisko was duly elected to the office of supervisor of the town of Cicero in the county of Cook, State of Illinois, on the 4th day of April, 1905, and as such supervisor he gave to the town of Cicero a bond as principal, with the defendant as surety, in the penal sum of $100,000. The condition of the obligation was that if the said Louis Grisko should faithfully account for all moneys that might come into his hands as such supervisor, and pay over the same pursuant to the provisions of law or the order or resolution of the board of trustees of the town of Cicero, and should faithfully perform the duties of this obligation to the best of his skill and ability, then the obligation was to be void, otherwise to remain in full force and effect.

The' complaint alleges that the town of Cicero was a municipal corporation organized and existing under and by' virtue of *511the laws of the State of Illinois, and by its charter it was provided that the supervisor should be ex-officio treasurer of the said town, and should receive and hold all moneys belonging to the town arising from general or special tax, special assessments, fines, penalties or otherwise, and that he should upon entering upon the duties of his office execute a bond to the town of Cicero in such amounts and with such sureties as should be determined by the board. It was also his duty to keep a correct account of such moneys received and paid out by him, and he was required to furnish from time to time to the board a statement of the moneys in his hands. That G-risko was elected supervisor of the said town on the 4th day of April, 1905, for the term of one year and until his successor should be elected and qualify. That said G-risko, as principal, with the defendant, as surety, executed and delivered to the town the bond above mentioned and duly qualified as such supervisor for the term commencing in the month of April, 1905, and entered upon the discharge of his official duties as such and continued in the exercise of his duties - for the full term mentioned in such bond. That ' there then existed a private banking institution owned and operated by one Atkinson, under the name or style of the Lincoln Bank, in which institution the supervisor deposited money received by him in his official capacity. So that on the 16th of April, 1906, he had on deposit in the said bank a balance of the funds of the town of Cicero amounting to $41,529.78. That on the said 16th of April, 19.06, and for several months prior thereto the said banking institution, operated as the Lincoln Bank, and the said Atkinson were hopelessly insolvent. That on or about the 4th day of April, 1906, the said G-risko was re-elected supervisor of the said town of Cicero for the following year, and that on the 16th of April, 1906, said G-risko, as principal, and the plaintiff, as surety, executed and delivered to the said town of Cicero a bond similar in all respects to the bond executed by the defendant, a copy of which is also annexed to the complaint. That after the last-mentioned bond had been executed and delivered as aforesaid, G-risko acted as supervisor of the said town until he retired from office on or about the 20th of May, 1907, on which date his successor qualified by filing Ms bond as supervisor. That on the *51216th of April, 1906, when . the said Grisko' qualified as supervisor for the ensuing year, he did not then or thereafter withdraw from the said Lincoln Bank any of the aforesaid balance of $41,529.78 which he had on deposit in. the said bank as supervisor and ex-officio treasurer of the town of Cicero, nor could the said balance have been withdrawn on account of the insolvency of said private banking institution as therein set forth. That the said Grisko after the'16th óf April, 1906,. and until the 23d of October, 1906, deposited various sums of money belonging to the town of Cicero in the said Lincoln Bank and withdrew from the said Lincoln Bank the sum of $100. That on the 23d of October, 1906, the said Grisko as supervisor and ex-officio treasurer of the town of Cicero had on deposit in the said Lincoln Bank a balance belonging to the said town of $53,490.91, which included the $41,529.78 which he had on deposit on the 16th of April, 1906. That on the 17th of December, 1906, Atkinson, operating under the name of the Lincoln Bank, was adjudicated a bankrupt, and in consequence thereof none of the balance, amounting do $53,490.91, on deposit with the said Lincoln Bank was ever paid over or returned to Grisko or to the town of Cicero, and Grisko fáiled and neglected to account for the said sum of money to the town' of Cicero or to pay over the same.to his successor. That in consequence thereof the town of Cicero instituted an action in the courts of the State of Illinois to recover the amount due from Grisko to the town of Cicero, which resulted in a judgment in favor of the town against the plaintiff, which the plaintiff subsequently paid. This action was instituted by the plaintiff, the surety on the second bond for the year commencing in April, 1906, against the defendant, the surety on the first bond for the year commencing in April, 1905. The question presented is whether on the allegations of this complaint the surety on the first bond is liable to the surety on the second bond for the amount that it was required to pay because of the failure of Grisko to account for • the moneys in his hands belonging to the town on the election of his successor in May, 1907.

Grisko was supervisor and ex-officio treasurer of this town of Cicero for the year commencing April 4, 1905, and until his *513successor-was appointed and duly qualified, and the defendant was surety upon the bond that he gave under the provisions of the charter of the town. The bond given by the plaintiff was to be void if Gfrisko should faithfully account for all moneys that came into his hands as such supervisor^ and pay over the same pursuant to the provisions of law or the order or resolution of the board of trustees of the town of Cicero and should faithfully perform the duties of his office to the best of his skill and ability. If this condition was complied with the bond was void; and to entitle the plaintiff to-recover, it must appear that the principal Gfrisko failed to fulfill the conditions of this bond. When in April, 1906, he was duly elected to succeed himself as supervisor for the ensuing year, he had on deposit in this bank a certain sum of money which he had received as supervisor and treasurer and for which he Was liable to account to the town. He had not up to that time failed to account for any money that had come into his hands as such supervisor or failed to pay over the same according to the provisions of law or order or resolution of the board of trustees of the town, nor, so far as appears, had he failed to perform his duties to the best of his skill and ability. When the electors of the town re-elected Gfrisko as supervisor they elected him to require an accounting from himself for the money that he had on hand, and he, in pursuance of the authority thus conferred upon him, took over and continued the account with this Lincoln Bank of the moneys that he had there on deposit to his credit as supervisor. So far as appears, and I think from the - statements of the complaint the inference.is justified that that money on deposit was treated by him as ■ the money of the town and continued into his new term, there is no allegation of bad faith on the part of Gfrisko, no allegation that he had failed to account for the money; no allegation that he had any knowledge that the bank was insolvent or the money in jeopardy — nothing but the fact that the bank was insolvent. And there was nothing by which it would appear as to how largely insolvent it was, or how much money.if it had been then drawn out or attempted to have been drawn out would have been lost to the town. The *514bank was not adjudicated a bankrupt until the 17th of December,- 1906, eight months after the re-election of G-risko, and there certainly can be no presumption, from the mere fact of general insolvency, that if Grisko had been compelled to account to another successor all or any portion of the money oh deposit would have been lost to the town in consequence of the insolvency of the bank. Apparently it continued to do business for eight months after Grisko’s re-election, and ■ there is nothing to show that if the supervisor had drawn checks upon the account. they would not have been paid except the allegation of a conclusion that the money could not have been drawn out on account of the insolvency of the institution. On these allegations, therefore, I do not see how it can be said that the condition of this obligation was broken so that the defendant became liable. Certainly if Grisko’s successor had been appointed and he had turned over to his successor this account in the bank as money in his hands belonging to the town, and his successor had . accepted the transfer of that account as a transfer of - the money belonging to the town, and then it had been lost by the subsequent failure of the bank eight months after Grisko’s successor had been elected, there would have been no obligation as against the defendant and no action upon the bond could have been maintained. It seems to me that upon the allegations of the complaint the same result must follow from Grisko’s continuing the amount in the bank and accepting it as a transfer of the town’s money to himself as his own successor and giving a new bond with the plaintiff as surety for the faithful accounting of money that he had in his hands at that time and that he should thereafter receive.

When the town sued the plaintiff (See 240 Ill. 220) it was held that the plaintiff was liable as surety for Grisko upon his failure to pay over to his successor all moneys that had come into his hands as such supervisor which had not been paid out by him pursuant to the provisions of law, or order, or resolution of the board of trustees, or otherwise lawfully accounted for by him, and that the' amount for which he was liable upon the qualification of his successor in 1907 was the amount that he had on deposit in this Lincoln Bank. To justify that judg*515ment it is apparent that Grisko must have keen chargeable with the amount on deposit in the Lincoln Bank at the end of his year of service following his election in April, 1905, and it apparently was based upon this failure to account for the money in his possession, namely, the amount on deposit in the Lincoln Bank, that the plaintiff was held to have violated the condition of the bond it gave in April, 1906. But the liability of the defendant here depends upon the terms and conditions of the obligation that it gave, and as long as the condition upon which its liability depended was not broken the defendant was not responsible.

I think, therefore, that no cause of action was alleged and that the demurrer was properly sustained.

Dowling, J., concurred.

Judgment reversed, with costs, and demurrer overruled, with costs, with leave to respondent to withdraw demurrer, and to answer on payment of costs.