Majority
p. 275The President and Directors of the Union Bank against Clossey and others. ALBANY, August, 1813.
Headnote
Where the condition of a bond was, that A. a clerk in a bank, should well and faithfully perform the duties assigned to, and trusts reposed in him, as first teller,” Sec. it was held to apply to the honesty and not to the ability of the clerk; and that the sureties were not responsiblefor a loss arising to the bank, from the mistake of the clerk,but only for a breach of trust or dishonesty»THIS was an action of debt on a bond, conditioned that the defendant Clossey “ should well and faithfully perform the duties assigned to, and trusts reposed in him, as first teller,” &c. Plea, non damnificatus.
Replication, that the defendant Clossey remained in the service of the plaintiffs, as such first teller, for a long time, to wit, from, &c. to, &c. and that while he so remained in their service, he did, as such first teller, receive a large sum of money, to wit, 1,839 dollars and 95 cents, belonging to the plaintiffs, for which (although often requested) he has not accounted, or paid over the same to the plaintiffs; but that the same is still wholly unpaid, &c. “ contrary to the form and effect of the condition of the said writing obligatory,” &c.
Rejoinder, by protestation, admitted that the defendant Clossey accounted with the plaintiffs of and concerning the said sum's of" money, &c. and that thereby a large sum of money, to wit, the' sum of 500 dollars only were found in arrears, &c. and alleges that the said arrears accrued by reason of overpayments, made by mistake, by Clossey, as first teller, and not through any want of fidelity on the part of him, Clossey, as first teller, &c.; and concludes with averring that, (admitting the arrears to be still due,) upon the said accounting, the said plaintiffs gave to the said Clossey time, to wit, from year to year, for the payment of the said arrearages, until he became insolvent, and entirely unable to pay the same.
There was a special demurrer to the rejoinder, and the causes
p. 276contendíed, that independent of the special causes of demurrer, the rejoinder was bad in substance, as the facts stated in it furnished no legal excuse, within the true intent and meaning of the condition of the bond. The condition of the bond is coextensive with the subject matter.[8] The plaintiffs might be as much injured by the mistakes of the clerk, as by his dishonesty or fraud. The object of the bond was to guard the plaintiffs against every .loss which might arise to them from the clerk, whether produced by his mistakes, dishonesty, or otherwise. The instrument is to be construed according to the true intent and meaning of the parties, which ought not to be defeated by a strict adherence to the exact words.[9] But another excuse alleged is, that the plaintiffs gave time to the clerk; but this would not exonerate the sureties, unless the default of the clerk had been purposely concealed from them.[3] Again, the rejoinder is bad, as it puts in issue a part only of the deficiency stated in the replication.[4] It is a departure from the plea of non damnificatus, for it admits a deficiency of 500 dollars.[5] Again, it is bad for its duplicity, as there are distinct fact» Stated, requiring three distinct answers ; and the rejoinder is not issuable, for whether the deficiency arose from the mistake or dishonesty of .the clerk, can only be known from his intentions, and intention is not traversable.[6] that the sureties could be made liable only for the dishonesty or corruption of the clerk. The instrument is to be construed according to the true meaning of the words, and is not to be extended beyond their just and obvious import. The replication is bad in assigning as a breach the not accounting and paying over the moneys received, when that might without any want of fidelity or honesty on the part of the clerk.[7] It was taken, probably, from one of the forms used in the cases of Barton v. Webb, (8 Term Rep. 459.) Shum v. Farrington, (1 Bos. & Pull. 460.) or 2 Chitty’s Pleading, 633, in which cases the conditions of the bonds were, to account for and pay over all moneys» ,
alleged were, 1. Because the rejoinder puts in issue, or attempts pU£ jjj issue} two separate, distinct and independent facts; 2. That the rejoinder is not issuable, &c. The defendants joined in the demurrer.
G. W. Strong and Wells, in support of the demurrer,
Anthon and Hoffman, contra, contended,
p. 277The defendants did not undertake for the intellectual capacity of the clerk, but only for his moral honesty.[8] If the replication is good, so is the rejoinder. The former states two distinct facts which may be traversed in the rejoinder.[9]
Without noticing the subsequent pleadings, it is sufficient to observe that the replication is bad in substance; for it assigns no breach of trust or want of fidelity in the clerk. The bond was, that he should well and■ faithfully perform his duties as first teller; and this evidently applied to his honesty, and not to his ability in his trust. A mere mistake in overpayment of a check can never be alleged as a breach of trust, for the.mistake may happen to a teller of the purest morals and the best capacity for business.
Judgment for the defendant, with leave, &c.