Hibernia Building Ass'n No. 2 v. Brady

Missouri Court of Appeals

Hibernia Building Ass'n No. 2 v. Brady

123 S.W. 1007, 146 Mo. App. 84, 1909 Mo. App. LEXIS 431

DecidedDecember 14, 1909

StatusPublished

This text of 123 S.W. 1007 (Hibernia Building Ass'n No. 2 v. Brady) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Hibernia Building Ass'n No. 2 v. Brady, 123 S.W. 1007, 146 Mo. App. 84, 1909 Mo. App. LEXIS 431 (Mo. Ct. App. 1909).

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Opinion

REYNOLDS, P. J.

(after stating the facts). — On consideration of the facts as above set out, we think this case is covered by the decisions of our Supreme Court in State ex rel. Chatham Nat. Bk. v. Finn, 98 Mo. 532, and North St. Louis B. & L. Assn. v. Obert, 169 Mo. 507.

We think that construing the bond on its face, it is apparent that it was intended to cover the whole term for which Brady had been elected on February 5, 1902. That it was so construed by the parties, that is, the principal and the obligee, plaintiff here, is made clear by the fact of the requirement of a new bond at the end of the year. While this understanding between these parties may not be binding on the sureties, the recital of the term of office in the bond itself is notice to the sureties that plaintiff intended to cover the acts of the principal for his whole term of office. The preamble to its condition refers to the election of Brady on February 5, 1902, and refers to the by-laws as requiring a bond, while the condition is that Brady account for all moneys coming into his hands during the continuance of his office. That is, it named the date of the commencement of his term of office and provided for his faithful conduct in office during the term thereof. Under such plainly written condition, it seems clear to us that all the parties to it understood that the bond covered the-year of the term. The statute itself, .Revised Statutes 1899, section 1359, requires a bond covering the term of

[90]*90office. So that we find no error in the action of the trial court in holding that the bond covered at least the year of the term of the office. As the court excluded all claims outside of this, and plaintiff makes no complaint, it is unnecessary to go into that question. The determination of the amount of the defalcation within this term was purely and solely a question of fact; we cannot disturb the finding of the court on that. On the authority of the cases above referred to, the judgment is affirmed.

All concur.

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REYNOLDS, P. J.

(after stating the facts). — On consideration of the facts as above set out, we think this case is covered by the decisions of our Supreme Court in State ex rel. Chatham Nat. Bk. v. Finn, 98 Mo. 532, and North St. Louis B. & L. Assn. v. Obert, 169 Mo. 507.

We think that construing the bond on its face, it is apparent that it was intended to cover the whole term for which Brady had been elected on February 5, 1902. That it was so construed by the parties, that is, the principal and the obligee, plaintiff here, is made clear by the fact of the requirement of a new bond at the end of the year. While this understanding between these parties may not be binding on the sureties, the recital of the term of office in the bond itself is notice to the sureties that plaintiff intended to cover the acts of the principal for his whole term of office. The preamble to its condition refers to the election of Brady on February 5, 1902, and refers to the by-laws as requiring a bond, while the condition is that Brady account for all moneys coming into his hands during the continuance of his office. That is, it named the date of the commencement of his term of office and provided for his faithful conduct in office during the term thereof. Under such plainly written condition, it seems clear to us that all the parties to it understood that the bond covered the-year of the term. The statute itself, .Revised Statutes 1899, section 1359, requires a bond covering the term of

[90]*90office. So that we find no error in the action of the trial court in holding that the bond covered at least the year of the term of the office. As the court excluded all claims outside of this, and plaintiff makes no complaint, it is unnecessary to go into that question. The determination of the amount of the defalcation within this term was purely and solely a question of fact; we cannot disturb the finding of the court on that. On the authority of the cases above referred to, the judgment is affirmed.

All concur.

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123 S.W. 1007, 146 Mo. App. 84, 1909 Mo. App. LEXIS 431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hibernia-building-assn-no-2-v-brady-moctapp-1909.

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