Walker v. Holtzclaw

1. Bonds. — The bond in question is a sufficient compliance with the statute to be set up as a statutory bond. Rules of construction of such bonds indicated. Mr. Chief Justice McIver dissents. 2. Surety — Corporations.—The doctrine that a surety is a favorite of the law, and that it must be construed strictly as to him, does not 'apply to cases where the surety receives compensation, and the suretyship is in the line of his regular business.

Before Townsend, J., Greenville, April, 1899. Action by G. Lawrence Walker, as county treasurer of Greenville Co., against R. R. G. Holtzclaw and The American Banking and Trust Co. of Baltimore City, on the following complaint: “1. That he is county treasurer of the county of Green-ville, in the State of South Carolina, and was duly appointed and commissioned as such on the day of , 189 , and is now and has been discharging the duties of said office, and was so doing at the time hereinafter stated. 2. That the defendant, R. R. G. Holtzclaw, was duly appointed dispenser for the West End dispensary, in Greenville County, on the day of , 1895. In accordance with the provisions and requirements of an act entitled ‘An act to further declare the law in reference- to, and further regulate the use, sale, consumption, transportation and disposition of alcoholic liquids or liquors within the State of South Carolina, and to police the same,’ approved December 21st, A. D., 1894, and qualified himself as such dispenser by giving the bond required as hereinafter stated, which was duly approved and delivered to the plaintiff as county treasurer, thereupon a permit was granted to him as such dispenser. 3. That on the 3d day of January, A. D. 1896, the said R. R. G. Holtzclaw as dispenser as aforesaid and the other defendant herein entered into a bond to G. Lawrence Walker, county treasurer of Greenville County, in the State of South Carolina, in the penal sum of $3,000, to be paid to the said county treasurer, his successors in office or assigns. The original bond being herewith exhibited and a copy thereof hereto attached as a part of this complaint. That the said bond was in due form and properly executed in accordance with the requirements of the act aforesaid, and was delivered after execution to the plaintiff as county treasurer. 4. That the said defendant, R. •F. G. Holtzclaw, as such dispenser, while discharging the duties of such dispenser, between the nth day of November, 1895, and the 14th day of August, 1896, received various shipments of whiskies, ales, beer, wine and other intoxicating liquors from the State commissioner amounting in the aggregate to $11,262.75, and in violation of his duty as such dispenser failed and refused to account for, pay over and remit the price of same, but has only accounted for, paid and remitted to the proper officers the sum of $9,807.33, and still refuses and fails to account for the balance, and has thus misappropriated, misued and wrongfully disposed of a large amount of money to wit: the sum of $1,455.43, and has thus violated the provisions of said dispensary act, to the damage of the plaintiff as county treasurer as 'aforesaid for Green-ville County, to the extent of such failure. 5- That the said defendant, R. F. G. Holtzclaw, has not as such dispenser paid all fines, penalties, damages and costs for which he is accountable and which he should have paid, and which are due and should be paid by him for violation of acts aforesaid, and has not well and truly obeyed the laws of South Carolina in force at the time of the execution of the bond aforesaid in relation to the sale of intoxicating liquors, or which were enacted during the term he was discharging the duties of dispenser aforesaid. 6. That on the day of , 189 , the permit granted to the defendant, R. F. G. Holtzclaw, as dispenser as aforesaid was revoked by the county board of control, that he thereupon ceased to act as such dispenser and has never since that time been reappointed as such dispenser. 7. That the said bond has been forfeited by reason of the breaches of its condition by the said R. F. G. Holtzclaw as dispenser as aforesaid, as hereinbefore stated, and the defendants have rendered themselves liable for the penalty of the same, to wit: for the sum of $3,000. 8. Wherefore, the plaintiff as county treasurer demands judgment that the said bond be declared forfeited, and that judgment be awarded against the defendants in the sum of $3,000; the penalty of the said bonds, and for the costs of this action, and for such other and further relief as to the Court shall seem meet and proper.” The bond reads: “Know all men by these presents, That we, R. F. G. Holtzclaw, of Greenville, S. C., as principal, and the American Banking and Trust Company of Baltimore City, a corporation organized in the laws of the State of Maryland, as surety, are held and firmly bound unto G. Lawrence Walker, county treasurer of Greenville County, in the State of South Carolina, in the penal sum of $3,000, to be paid to the said county treasurer, his successors in office or assigns, to which payment well and truly to be made and done, we bind ourselves, and each and every of our heirs, executors, administrators and successors, jointly and severally, firmly by these presents. Dated, this third day of January, 1896. The condition of the above obligation is such, that if the above bounden R. F. G. Holtzclaw, county dispenser for the county of Greenville, shall forward all monies received by him on Monday of each week to the State commissioner, and send a duplicate statement of such remittance to the State board of control, and shall also at the same time deposit with the county treasurer the portion of all monies received by him belonging to the county and the municipal authorities, and shall well and truly obey all the laws now or hereafter in force in relation to the sale of intoxicating liquors, and the rules of the county and State board of control; and shall pay all fines, penalties, damages and costs, that may be assessed or recovered against him for any violation of said laws and rules; and shall not sell any intoxicating liquors under his permit as dispenser at a charge exceeding fifty per cent, above the cost thereof to him, and shall make all reports and settlements as such dispenser, now or hereafter required of him by law; then this obligation to be void and of none effect, or else to remain in full force and effect, in case he is in default in the discharge of his duties in any one or all of the particulars, herein mentioned. The liability of said company as surety hereon is subject to the following provisions and conditions: First. That said surety shall continue responsible under this bond for the term of only one year from the date thereof, unless such responsibility be continued by a premium receipt of said surety extending the said term, and filed herewith. Second. That surety may, on giving thirty days written notice to the obligee herein, terminate its responsibility for the acts of defaults of said principal, committed or occurring after the expiration of such thirty days, but remaining liable for acts and defaults occurring previous to such termination. Third. That the obligee herein shall give said surety prompt written notice on discovery of any act or default of the principal which would entitle the obligee to claim hereunder; and the surety shall be liable hereunder for only such valid claims as shall be so notified to said surety within twelve months after the termination of its liability hereunder and within twelve months after the date on which the principal shall have ceased to hold his said office or position of county dispenser, and no suit or proceeding shall be brought against said surety to recover any claims hereunder unless service of process therein be made on said surety within one year (365 days) after the first notice to said surety of any claim hereunder. In witness whereof, the said principal has hereunto set his hand and seal, and the said surety has caused this bond to be signed by its president and by its secretary, and its seal to be hereunto fixed, upon the date above written. R. F.- G. Holtzclaw, (l. s.) Principal. Sealed, signed and delivered by the principal in the presence of W. D. Metts. The American Banking and Trust Company of Baltimore City. (l. s.) By Joshua Homer, Vice-President, and John T. Stone, Secretary.” From order sustaining demurrer plaintiff appeals. The latter cites: 21 Stat., 721; 37 Am. Dec., 566. 21 Stat., 725; 38 S. C., 236; 43 S. C., 517; 3 Wash., 10; 7 Mass., 200; 8 Mass., 373.