Several assignments of error are predicated upon rulings made upon the trial of the case, whereby the court excluded certain evidence offered by plaintiff to show that Elliott’s predecessor in office turned over to him certain sums of money, the property of the city of Great Falls. We find no error in this action of the court, inasmuch as it was expressly admitted by the answer that Elliott, as treasurer, did *88between Mayl and August 5, 1893, receive $18,000 in money belonging to the said city. Plaintiff having asked judgment for $18,000 and interest only, the evidence was immaterial.
Plaintiff then introduced evidence of the failure on July 24, 1893, of the Merchants’ National Bank at Great Falls, the depository where Elliott, as treasurer, had to his credit when he died the sum of $21,184.78. This evidence was properly admitted. '
Thereafter plaintiff asked L. G. Phelps, the successor in office of Elliott and receiver of the suspended Merchants’ National Bank, whether the money found to have been deposited in said bank by Elliott had been deposited there before the suspension of the said bank. Defendants objected to this question as immaterial, unless plaintiff intended to show “an unlawful deposit.” The court properly overruled this objection.
Plaintiff also proved a demand of defendants, and the fact that three dividends, of 10 per cent, each, had been paid to the city treasurer by the receiver of the Merchants’ National Bank since the suspension, but that no money had been paid by defendants to the city’s account.
Upon substantially the foregoing concessions and proofs each party moved for judgment. Defendants prevailed.
in a memorandum opinion by the district j udge, wherein he gave his reasons for deciding in respondents’ favor, he said in part: “The only breach in the conditions of the bond, if one was committed, was in the failure on the part of Elliott to pay over the moneys coming into his hands. The recovery is not sought upon any other grounds. This became impossible because of the sudden death of Elliott by drowning in the Missouri river. It cannot be that the legislative intent was that a principal on a bond, the condition of which requires him at the expiration of his term to turn over to his successor the funds in his hands, should be considered in default of that condition because of his death.
“The statutory obligation is that the treasurer, when he vacates his office at the expiration of his term, or before, shall *89deliver to his successor in office all moneys, etc., belonging to the city, held by him as treasurer, and there could be no liability under the statute if death prevented it. There was no wrongful conversion before his death; there could not be after. ’ ’
W e disagree with this view of the law. The statute under which Elliott gave bond as city treasurer was as follows: "The treasurer shall give bond to the city in its corporate name, with sureties to be approved by the council or board of aldermen, in such sum as may be required, which shall not be less than the total amount of moneys estimated to be paid to him during the year, for the fathful performance of his duties as treasurer, and also when he vacates the office that he will deliver over to his successor all money, books, papers, property and all other things belonging to the city or town, held by him as treasurer.” (Compiled Statutes 1887, div. 5, § 350.)
There is in the statute no provision, expressed or implied, limiting the liability of the treasurer to a vacation of office at or by the expiration of his term, but a plain obligation upon him that, when he does vacate, he will deliver over to his successor all money, etc., belonging to tbe city held by him as treasurer. An existing office is vacated by the death of the incumbent as well as by his resignation or removal. The fact that death overtakes an officer cannot alter the consequential fact that the office is thus vacated, or lessen the liability of the official or his sureties. The condition of Elliott’s bond was for the faithful performance of his duty as treasurer, and that he would pay over all moneys that came into his hands as treasurer, and deliver to his successor all moneys belonging to the office of treasurer. It was part of his duty under the statutes to deposit all money of the city in his name as treasurer. By so holding it in his official name, if at any time or for any reason, accidental or otherwise, he might vacate the office, his successor could at once be possessed of the funds belonging to the city. Death did not change the legal obligation on Elliott to be honest, or to faithfully perform the duty of having all the moneys belonging to the city on hand and in *90his name as treasurer, so that his successor could receive them at once, if a vacancy should occur; it only prevented the manual tradition by Elliott to any successor in office of the deposits themselves, or of evidences of such deposits. And, when his sureties agreed that he would faithfully perform his duties, they also agreed that when he vacated the office he would have on hand for delivery over to his successor all moneys received by him as treasurer. So, when the vacancy occurred and the city’s moneys received and deposited by the treasurer were not on hand, and were not paid over, there was a breach in the conditions of the bond, Elliott’s duty had not been faithfully performed, and the sureties became liable to make good any deficiency, and to pay the same over to Elliott’s successor in office. To countenance any other rule would be to impair the security of public funds. It cannot be that the sureties of an official who has absconded with public moneys, or of one who has embezzled them, yet who has died before his term expired, are in a far better position than the bondsmen of one who, though equally guilty, has remained in office until the expiration of his term. If such be the law, flight or suicide of officers who are short in their accounts before their terms may expire are tempting hopes of their sureties. Such never was the intention of the legislature, and such is not the language of the statute.
The case of Allen v. State, 6 Blackf. (Ind.) 252, is in point, although not nearly sq strong a case as the one at bar. There the official gave bond to pay over to his successor, at the expiration of his term of service, all moneys which might then be in his hands. The official died during his term, with various sums of money in his hands as an official. When the sureties were sued because no money had been turned over, it was argued that it was impossible for a commissioner, whose successor was not appointed until after his death, to deliver money to such successor. But Judge Dewey, for the court, held such objections were not well taken. Speaking of the purpose of the legislature, he said: “Their intention doubtless was that that the bond should secure the payment over to the *91proper officer of all the school funds remaining in a commissioner’s hands at the termination of his service, however that event might be produced, whether by resignation, removal or death.” We approve of this view, as applied to the bond given by Elliott, considering the statutes of this state then controlling. Murfree on Official Bonds, § 455, disapproves of Allen v. State, supra, but places the reason for his disapproval upon the particular terms of the bond, which imposed no condition upon the officer to pay over until the expiration of his term of service. Inasmuch as the statute of Montana, heretofore quoted, required a bond by the treasurer with sureties to pay over when he vacated, the criticism of Murfree loses all force in the present case. Throop on Public Officers, § 251, also lays it down that, as against a treasurer’s sureties, the condition of the treasurer’s bond is broken if he dies with funds in his hands unaccounted for, citing the Indiana decision to uphold the test. The laws requiring the city treasurer to deposit all moneys received by him as treasurer to his official account, and governing his official acts in relation to city funds, make him a bailee. (City of Livingston v. Woods, 20 Mont. 92, 49 Pac. 437.) When the ' treasurer died, and his office was vacated, the bailment terminated, and the city, through Elliott’s successor, had a right at once to claim its money. (Lawson on Bailments, 62; Hale on Bailments, page 76.)
The expression of the foregoing views upon the liability of the treasurer and his sureties leads us to conclude that the complaint in this action is sufficient. It is good in its averment of a failure to safely keep the city moneys, and to deliver them over to his successor, and in its allegations of a failure and neglect on Elliott’s part to pay over the sum of $18,000, or any part thereof, that came into his hands as treasurer of the city of Great Falls. If these allegations were true, he failed to perform the duties of his said office.
The complaint is drawn in contract, notwithstanding its allegations of a fraudulent and wrongful conversion. The pleader in making the charges of conversion believed the omission of a city treasurer to safely keep city funds war*92ranted such legal conclusions. The complaint, however, having been framed on the theory of an action to hold the defendants upon their liability in contract, immaterial, or even incorrect, legal conclusions do the defendants no possible harm. (Greentree v. Rosenstock, 61 N. Y. 583.)
We gather from the pleadings and proceedings that plaintiff had two theories of the case — one, that a failure to safely keep and pay over the city money constituted breaches of the bond; another, that a deposit of city funds in a bank that afterwards suspended by a city treasurer necessarily constituted a conversion. The first theory is correct, but the latter is not. (Livingston v. Woods, supra.)
Defendants likewise proceeded upon an erroneous theory in regarding the only issue in the case to be whether Elliott, as treasurer, fraudulently and wrongfully converted and appropriated to his own use §18,000 of the city’s money received by him as treasurer. They should have recognized the action as one in contract. Now, however, that the law concerning the liability of a city treasurer has been settled by the doctrine of Livingston v. Woods, supra, the parties hereto can amend their pleadings and try this case in accordance with the simple rules laid down in the opinion filed therein.
. Believing it just and proper that the action should be tried anew, the judgment and order of the district court are reversed, and the cause is remanded, with directions to grant a new trial.
Reversed and, remanded.
Pemberton, C. J., concurs. Pigott, J., disqualified.