State v. Spittler , 79 Conn. 470 ( 1907 )

It is unnecessary to pass upon the correctness of the court's rulings upon the demurrers to the complaint. The answers brought upon the record the condition of the bond in suit, and the demurrers to those answers present in clear relief, among other incidental questions, those which must be decisive of the case. MechanicsBank v. Woodward, 74 Conn. 689, 691, 51 A. 1084. The primary question relates to the construction to be given to the condition of the bond sued upon. It is clear and conceded that the bond was, as against the Guaranty Company, security for the defaults of either Spittler or Corbin, or both, prior to the time when the latter ceased to be a receiver. It is also clear, if not conceded, that it would have remained such security during any continuance of the joint receivership relation, whether under their original appointment or any new appointment or confirmation, and whether that new appointment or confirmation assumed to style them temporary or permanent receivers, or receivers only. It is also, we think, clear, although not established by a uniform current of authorities and not conceded at least by Corbin, that his obligation to the State would under the conditions stated have been coextensive with that assumed by the Guaranty Company.Babcock v. Hubbard, 2 Conn. 536; Brazer v. Clark, 5 Pick. (Mass.) 96; Newton v. Newton, 53 N. H. 537; Boyd v.Boyd, 1 Watts (Pa.) 365; Braxton v. State ex rel. Albert,25 Ind. 82; Probate Court v. May, 52 Vt. 182. The question here at issue, however, is as to the liability of these defendants for the defaults of Spittler after the joint receivership had, by the court's substitution of his sole receivership, ceased to exist. The instrument, it is plain to all, was drafted in an attempt to adapt a form contained in our rules as appropriate for a single receiver, to a situation where there was a joint receivership. Rules of Court, p. 24, § 52. In this attempt, words which would have made the liability unmistakably distributive as related to future appointments or confirmations, and made the bond a continuing security for the proper conduct of either of said temporary receivers in the event that he should by such appointment or confirmation become a receiver unassociated with his fellow, were unfortunately omitted. We have now to inquire whether this omission was otherwise supplied, so that, notwithstanding their absence, the bond is to be construed as though they were present.

It is easy to understand that A might be willing to become surety for the faithful execution of a trust by X andY acting jointly, when he might be quite unwilling to accept that responsibility for one of them acting alone, and that the obligation in the latter case might in fact be a much more serious one than in the former. We must look to the language of the present instrument to discover what the expressed willingness and intention of these obligors was. In doing so, it is to be borne in mind that it was drafted in pursuance of the rules of court and to conform thereto, and that the terms employed are all those to which our law has assigned a definite and unmistakable meaning. Rules of Court, p. 23, § 50 et seq. When, therefore, the condition, after reciting the appointment out of court of Spittler and Corbin as temporary receivers, prescribed the obligation assumed for the conduct of the appointees under that appointment and under any future confirmation or appointment as either temporary or permanent receivers, it was contemplating contingencies which were to be anticipated in the course of judicial action according to the prescribed routine, and attempting to provide for them as distinct situations. The liability of the obligors for the original period of temporary receivership was unmistakably conditioned upon an associated receivership. The language defining that liability for any succeeding periods of either temporary or permanent receivership is singularly lacking in either expression or suggestion of a different conception. There is nothing from which it can be inferred that the parties had in mind the possibility of a change from a joint administration of the trust to an administration by one of the then appointed receivers with the oversight of his fellow withdrawn. Appropriate words of severance are not only absent, but the natural language both of association and of continuance of existing conditions is present. Clearly we cannot, without importing into the instrument provisions which do not appear in it, say that its signers have therein expressed their intention and undertaking to become responsible for the faithful discharge of the duties of the receivership unless they should be administered by both Spittler and Corbin acting together. A surety "is never answerable beyond the clear scope of his engagement." Lockwood v. Jones, 7 Conn. 431,435; Parsons v. Williams, 9 id. 236, 239. "The contract of suretyship is construed strictly, both at law and in equity, and the liabilities of the surety cannot be extended by implication beyond the precise terms and scope of his engagement." Bulkeley v. House, 62 Conn. 459, 470,26 A. 352.

Counsel for the plaintiff further urge that, although the bond by its terms did not make the obligors liable for thedevastavit of Spittler while acting as sole permanent receiver under the order so appointing him, yet as to Corbin it must now be held as imposing that liability. This appeal to the principles of estoppel is made upon grounds variously stated in the brief. In one place it is said that the reason is that he joined in having the bond continued in force by the court, reference being had, we assume, to the fact that he and Spittler made application for the appointment of a permanent receiver. In another, the reason is stated to be that he did not require a new bond upon Spittler's appointment as permanent receiver. In still another, his unspecified "conduct" is in general terms assigned as the ground for this claim. We know of no conduct of Corbin which could be claimed as creating an estoppel, besides that which has been referred to. There remain, then, as the only basis for the sought-for-estoppel, Corbin's application and what is termed his failure to require a new bond.

This so-called application by Spittler and Corbin was nothing more than the performance by the temporary receivers of a perfunctory duty required of them by § 51 of the Rules of Court, p. 23. In making it Corbin committed himself to no form of appointment, to the appointment of no person or persons, to nothing respecting the qualification of the appointee or appointees. Neither expressly nor by implication did he suggest a course of action to be pursued with the bond on file, or as to the scope or effect of that bond. He simply performed his duty and left, as he was entitled to do, the performance of the court's duty to it without recommendation, representation, or suggestion. As for his not requiring a new bond, that matter did not lie within the province of his duty either as receiver superseded, or individual bondsman. He was justified in assuming that the proper and lawful course would be taken in the qualification of his successor, and that no use would be attempted to be made of the bond bearing his signature which its terms did not justify. There can be nothing in any of these things to furnish a foundation for an estoppel.

No other reason is suggested by the plaintiff why either of the defendants should be held for Spittler's devastavit, and our diligent inquiries for such a reason have failed to disclose a satisfactory one.

There is error and the judgment against each of the appellants is reversed.

In this opinion the other judges concurred.