Fidelity & Deposit Co. v. Wilkinson County

Smith, C. J.,

delivered the opinion of the court.

This is an appeal from a decree overruling a demurrer, filed by appellant surety companies, to appellee’s bill, and was allowed for the purpose of settling the principles of the case. According to the allegations of appellee’s bill, the Citizens’ Banh was designated and acted as depository of the funds of Wilkinson county for the year 1912, and was designated as county depository for 1912, and acted as such until the 18th day of January, 1913, when' it suspended payment, closed its doors, and was placed in the hands of a receiver. The bank executed a bond to the county, guaranteeing the faithful discharge of its duties as county depository for the year 1912, and another for the year 1913. Two of appellant surety companies were sureties on both of these bonds. One was surety only on the first, and four were sureties only on the second bond.

The purpose of the bill was to collect from this bank, or its receiver, and these surety companies, the money due appellee by the bank as county depository. In ad-’ clition to the bank, its receiver, and these surety companies, there were joined as parties defendant to the bill the president and cashier of the bank. ^The, bill,alleged that the county had never been paid the amount due it' *660 by the bank as interest on daily.balances; that on the “1st day of January, A. D. 1913, in addition to the interest as above set out, there remained in the hands of the said defendant, the Citizens’ Bank of Wilkinson county, as depository, for which its said sureties were responsible, the sum of thirteen thousand five hundred and thirty-six dollars and ninety cents. And on said day, as it was required to do by the law, it reported to the officers of the county that such sum of money was on hand, and the officers of the county believed to be true,” and, after reciting the execution of the bonds for the year 1913, continued: “The bonds of the said defendant Citizens Bank of Wilkinson county being accepted, it became and was the depository for said second term, and upon said second term it carried as cash on hand over into said second term, or as due the county over into said second term, the said sum of thirteen thousand, five hundred and thirty-six dollars and ninety cents. The officers of the county believed that said money was on hand as . reported, and from information and belief charge that it was on hand and further complainants charge and contend that, it having acted in every respect, the said defendant the Citizens Bank of Wilkinson county, and its sureties for the said year 1913, having reported said money on hand and upon the faith of such report having secured the acceptance of its bond as aforesaid, was and is now estopped from showing that said money was not on hand at that time. That the court upon.the hearing may adjust the matter as between the sureties, and if the court may be of the opinion that the said bank and its sureties are not estopped from showing that said money was not on hand at the time as aforesaid, and this being a matter peculiarly within the knowledge of the defendant Citizens Bank of Wilkinson county and its president and vice president and its receiver and necessary to the adjustment of the interest of all the parties, the complainants pray that they be required to disclose if said money was on hand as it should or was the report false *661 and untrue. That after receiving the said amount on hand as aforesaid, to wit, thirteen thousand five hundred and thirty-six dollars and ninety cents, and during said period covered by said bond, it also received upon deposit other moneys of the county amounting to the full sum of nineteen thousand three hundred and sixty-four dollars and seventy-nine cents, which, together with the amount brought forward from the first period, makes the total amount received by said depository, for which said sureties for the said year 1913 period are responsible, the sum of thirty-three thousand eight hundred and twenty-nine dollars and twenty-six cents, together with two and one-half per cent, interest from the 1st day of January, A. D. 1913, until paid, calculated upon daily deposits as aforesaid.”

The bill further alleged that the bank had paid out some of the funds deposited with it during the year 1913 on legally drawn warrants, but that the amounts thereof were unknown to appellee; and the bank, its receiver, president, and vice president, were called upon for a discovery thereof.

It will be observed that the whole amount here sued for is due by the bank and of this amount the two bonds are responsible; éach not being responsible for the entire amount, but only for any defalcation which may have occurred during the year covered by it. Appellant’s main contention is that appellee’s remedy is separate suits at law on each of these bonds to recover any defalcation which may have occurred during the life thereof. It is clear, however, from the allegations of the bill that ap-pellee does not know whether any defalcation other than the failure to pay interest occurred during 1912 or not, and that fact can be ascertained and the liability vel non of each bond therefor established only by the statement of an account and an ascertainment'óf the financial condition of the bank on the 31st day of December, 1912, or on any date when the money deposited in 1912 should *662 liave been paid over, in accordance with the methods pursued in a court of chancery, in which all of the sureties on both bonds have an equal interest and in any proceeding instituted for that purpose should be parties defendant in order that full, adequate, and complete justice may be done. The case clearly falls within the rule applied in State v. Brown, 58 Miss. 835 ; Gay v. Edwards, 30 Miss. 219 ; Board of Supervisors of Lauderdale County v. Alford, 65 Miss. 63 , 3 So. 246 , 7 Am. St. Rep. 637 .

It is contended by appellant, however, that the bill expressly charges that on the 1st day of January, 1913, the bank had on hand all of the money then due by it to the county, and that therefore it affirmatively appears from the bill that no defalcation occurred during the life of the bond for 1912 other than failure of the bank to pay interest on daily balances and, as the bondsmen for 1913 have no interest in the ascertainment of the amount of this interest, that no case for an accounting is made in so far as they are concerned; that appellee’s remedy is a suit at law on the bond of 1913 to recover the amount due other than interest on daily balances for 1912; and that this interest should be recovered in a separate and distinct suit on the bond for 1912. There is no merit in this contention for it is clear from the allegations of the bill hereinbefore set out that all appellee meant to charge and in fact did charge is that the bank reported to it that it had on the 1st day of January 1913, to the credit of appellee, the sum of thirteen thousand five hundred and thirty-six dollars and ninety cents, balance due appellee on deposits for 1912, and that the surety companies on the bond for 1913 were liable therefor, if the bank in fact had this money then on hand, or, in event the sureties on the bond for 1913 were estopped from denying that it so had, then the bond for 1913 was responsible therefor.

The report made by the bank to appellee simply indicated that it had the amount named then to its credit *663 and did not necessarily indicate that it actually then had on hand that much of the original money deposited with it,' or that much actual cash with which to pay the amount admitted to be due. Banks, acting as county depositories, under the present statute are not required to keep on hand the actual money delivered to them by the counties nor to keep on hand at all times an amount of money equal to that deposited with them; all they are required to do is to account for the money and pay it over when required. The purpose of a bank in becoming a depository is, of course, that it may obtain the money of the county and use it in its business.

The bill is not multifarious because of the joinder of the two sets of surety companies, because, as hereinbe-fore pointed out, an accounting, in which each set of sureties is interested, is necessary; nor is it multifarious because the president and vice president of the bank are joined as parties defendant thereto. No relief is asked against them, and they are simply made parties in their official capacity in order to insure the making of a complete discovery, which discovery is necessary in order that the relief prayed for may be obtainécl.

But it is said that the condition of these bonds is that the bank “shall during the period from the 1st day of January, 1913, to the 1st day of January, 1914, well and faithfully perform the trust deposited in it by such designation and shall promptly pay all funds and moneys deposited with it on the warrant of the lawful parties, and shall well and truly indemnify the said obligee from any and all loss which it may suffer or sustain during the period aforesaid,” and that, since the bill contains no allegation that any warrant had been presented and its payment declined by the bank, no breach of the bond is shown, and therefore that the demurrer should be sustained on that ground. Such an allegation was unnecessary, for the bill specifically alleges, as hereinbefore set-out, that the bank “suspended payment, closed its doors, *664 and was put in the hands of a receiver,” from which it appears that the presentation of a warrant would have been a vain and useless thing, the doing of which the law does not require.

Affirmed, with leave to appellants to answer within thirty days.