Inhabitants of Farmington v. Stanley , 60 Me. 472 ( 1872 )

Appleton, C. J.

This is an action of debt against the sureties of Leonard Keith upon a bond dated March 3, 1863, and given by him as treasurer of the plaintiff town, for the year ensuing. The evidence shows that Keith was a defaulter.

The defendants resist liability on various grounds.

By R. S. of 1857, c. 6, § 135, reenacted by R. S. of 1871, c. 6, § 152, every treasurer is required to render an account of the state of the finances of the town, and to exhibit all books and accounts pertaining to his office, to the municipal officers of the town when required, and the officers are required to examine such treasurer’s account as often as once in three months. But this has not been done. The sureties, however, are not thereby released. They covenanted that their principal should faithfully discharge the duties of his office. They are not released because other officers failed to do their duty. However negligent the selectmen might have been, the obligation was none the less stringent upon the treasurer that he should do his duty irrespective of the negligence of other town officers.

When the selectmen of Farmington examined the accounts of their treasurer, there was a mistake in his addition, which they failed to discover. They thereupon gave the following certificate:

‘ Farmington, March 4, 1864. •

‘We have examined the accounts of Leonard Keith, treasurer of Farmington for 1863-4, and finding the same correct, allow the same.

ALVAN OultIuER, HIRAM Russ, H. B. STO-YELL,

Selectmen, of Iarmington.'

The selectmen are agents of the town with limited powers. Without special authority given them, they have no right to release a witness who is liable to the town in case a judgment is recovered against it. Carlton v. Bath, 2 Foster 559. In Horn v. Whittier, 6 N. H. 94, an action was brought upon a bond given by the collector to the selectmen, for the faithful performance of his duty as collector, and one of the selectmen undertook to release the action. But the court held the release of no effect; that no one of the selectmen could release without authority from the town. The decision does not rest on the ground that the release was by one alone, but that no effectual release could be given without the authority of the town by vote. Here was a mistake in the treasurer in addition. It was not perceived by the selectmen. ‘ It is admitted,’ observes Story, J., in U. S. v. Kirkpatrick, 9 Wheaton 720, referring to a bond given to the United States, ‘that mere laches, unaccompanied with fraud, forms no discharge of a contract of the nature between private individuals. Such is the clear result of the authorities.’ The selectmen had no right to discharge the treasurer nor his sureties from these liabilities under their bond in case of a breach. If they could not do this directly, without authority from the town, still less could they do it indirectly. It was the neglect of the treasurer in his addition of the amount received that his defalcation was not then perceived. In Porter v. Stanley, 47 Maine, 515, there was a settlement made with the collector, by the selectmen, but it was held to bind neither the town nor the sureties of the collector, inasmuch as their settlement was not in accordance with the legal rights of the parties.

Nothing in the case indicates any error in the settlement made by the selectmen with the administrator of Keith’s estate, adverse to the defendants.

Some of the bondsmen of Keith for the several years during which his defalcation occurred, have deposited $3,600 to meet these liabilities. This aniount, which pays about forty-five per cent of the defalcation of each year, is to be divided pro rata. The defendants are entitled to a reduction accordingly, from the amount of their liability.

Judgment for plaintiffs for $2,090, with interest from March 4> 1864, less the defendants’ proportion of $3,600 paid by the bondsmen of Keith, as stated in the report.

Cutting, Walton, Dickerson, and Daneorth, JJ., con-, curred.