McMullen v. Winfield Building & Loan Ass'n

Citations

• 64 Kan. 298
• 67 P. 892
• 56 L.R.A. 924
• 1902 Kan. LEXIS 202

Syllabus

<p>SYLLABUS BY THE COURT.</p> <p>1. Sureties — Terms of Bond — Prospective and Retrospective Liability. Where the terms of a bond clearly show that it was intended to be retrospective as well as prospective, sureties may he held liable for defaults occurring before the execution of such bond.</p> <p>2. - Officer’s Bond — Term of Office• — Date of Bond.- A bond of an officer recited that he had been elected for the year beginning January 1, 1885, and ending December 31, 1885, and had accepted the office, and it was conditioned that if he should faithfully perform the duties of his office “during said year” the bond should be void and of no effect, but otherwise should remain in full force and effect. The officer was not elected until some time after the first of the year, but had held successive terms and been continually in office for several years before and after 1885. Held, that the surety made himself responsible for the defaults of the entire year of 1885.</p> <p>3. -Evidence of Time of Misappropriation — Burden of Proof. Presumably, money which came into the officer’s hands and should have been there was still in his possession, and the burden was on the surety to prove that the funds presumably in the hands of his principal had been misappropriated before he became liable on the bond.</p> <p>1. -Limit of Liability — Allowance of Lnterest. While the penalty of the bond fixes the limit of liability of the surety at the time the liability arises, yet if the principal or surety fail to discharge that liability when it matures, interest may be allowed on the amount from the time the liability arises, even if the amount of recovery shall exceed the penalty.</p> <p>5. -Limitation of Action — Fraudulent Concealment of Defalcation. Where an officer and agent misappropriates money entrusted to him, and fraudulently conceals his defalcations, the statute will not begin to run until the discovery of the fraud and of the breach of the condition of the bond.</p> <p>6. -Ide