American Surety Co. v. Googe

Jenkins, P. J.,

concurring specially. One of the questions involved in this case does not seem to be without some difficulty. I am concurring in the opinion on the theory that it was the intention of the parties to give a statutory bond, notwithstanding the fact that the liability imposed by the bond does not follow the language of the statutory obligation, and is not as broad, and that, contrary to the provisions of the statute, is limited as to time and requires notice of loss to be given. It is the general rule that where a bond is given under authority of a public statute in force at the time it is executed, in the absence of anything appearing to show a different and contrary purpose and intent, it will be presumed that the intention of the parties was to execute such bond as the law requires, and such statute constitutes a part of the bond as if incorporated in it, and the bond must be construed in connection with *111the statute, and under the construction given to the statute by the courts. In this case the general law requires a bond for the faithful performance of the duties of the secretary and treasurer of a local school district, payable to the county board of education. In compliance with the mandate of law, a bond was executed to the county board of education by the public official after he had stated to the agent of the bonding company that he had been elected to the office mentioned and desired to give the statutory bond required by law, and after the board of education had stated in writing the name of the office held by the principal and thus given in detail the nature and character of his duties, and under this bond the official proceeded to qualify and serve. By the terms of the bond executed, the principal and surety became liable for any acts of fraud, dishonesty, forgery, theft, embezzlement, wrongful abstraction, or wilful misapplication on the part of the principal of any funds held by him as such official. The provisions of the bond undertook to set up limitations restricting liability thereunder to such acts only as might have occurred within a time prior to the filing of suit less than the statutory period of limitations, and also to such loss of which notice was given to the surety within a limited time after the loss. Inasmuch as the public law required a bond to be given to the obligee named in the present instrument (contrary to what was the fact in Mayor &c. of Brunswick v. Harvey, supra), and since the bond sued on was given in accordance with the mandate of law and the official qualified and served by virtue of having given the samé, and inasmuch as the liability embraced by its terms includes every conceivable sort of misapplication or misappropriation of funds, it would seem that the purpose and intent of the instrument as executed was to comply with the duty required by law, and that the language employed by the bond in imposing liability was intended as an interpretation, though in different language, of what the statute actually requires, since it embraced by express terms the same character of liability as the language of the statute imposes, although it must be conceded that the language of the bond imposing liability can not be said to go to the full extent that liability imposed under the statute does, since liability for acts of negligence (such as are here involved) is not embraced by the terms of the bond. This, the point of difficulty, being granted, the bond intended to meet the statutory requirements would not be invalidated *112merely because it sought to include conditions or limitations not authorized by law, since it appears to be the general rule that in construing the bond in connection with the statute, whatever is included in the bond which is not thereby required must be read out, and whatever is not expressed and ought to have been incorporated must be read in, so as to conform to the requirements of law; in other words, a bond may be intended as a statutory bond although it does not by its terms cover the full liability expressed by the statute, and although it may contain some provision or proviso not authorized by the statute. In such a case whatever is excluded must be read in, and any unauthorized proviso must be treated as surplusage and read out as void. 9 C. J. 34, 35; 22 R. C. L. 497.