Dover v. Robinson , 64 Me. 183 ( 1874 )

Barrows, J.

Upon the testimony here reported the question seems to be whether the inhabitants of a town can maintain an action against the sureties upon a collector’s bond originally given in the penal sum of twenty-five hundred dollars when said penal sum has been altered by the principal in the bond, since its delivery, with the knowledge and consent of the selectmen of the town, from twenty-five hundred to twenty-five thousand dollars, without the knowledge of the sureties, and in the absence.of all proof of a subsequent ratification by them. The proposition that these facts are sufficient to sustain the sureties’ plea that such altered bond is not their deed, would seem to admit of little doubt. It is not a case of spoliation by a stranger. The cases which hold, as in Small v. Danville, 51 Maine, 359; and Mitchell v. Rockland, 52 Maine, 118, that towns are not responsible for the wrongful acts of their officers in the performance of a public duty imposed upon them by statute, have no proper application to a case like this.

It is no legitimate consequence of the doctrine of these and similar decisions, to subject the debtors of a town to the increased liabilities which might ensue from an undetected alteration of the instruments which form the evidence of their indebtment, when such alteration is made with the permission of the financial agents of the town, and to hold that such tampering with written obligations entails no risk of loss when unsuccessfully attempted. The town seeks here to enforce a right by virtue of a sealed instrument which was never executed in its present condition by those against whom they claim to recover on the strength of it. The change, which would avoid it beyond controversy or question if made with the consent of an individual obligee, was made by the consent of those whom the town had made its custodians. The plaintiffs claim- to maintain their suit upon the bond notwithstanding its avoidance, upon the ground that the alteration was an act unauthorized by them, and one which their selectmen were not empowered by law or vote of the town to permit.

To be relieved from a liability incurred through the unauthorized and unlawful act of a public officer is one thing — 'to enforce as a valid subsisting claim a bond which has been vitiated with the consent of those who rightfully had it in keeping on behalf of the town, is quite another. There seems to be no good reason why the principles which are laid down in Chadwick v. Eastman, 53 Maine, 12; and Lee v. Starbird, 55 Maine, 191, touching the alteration of written instruments offered in evidence should not be held to apply to a case like the present. It is not a case of misappropriation of payments like that of Porter v. Stanley, 47 Maine, 515, nor of negligence and mistake on the part of the selectmen like that of Farmington v. Stanley, 60 Maine, 472, where the defendants were rightly held chargeable for the default of their principal although they might have been relieved if the mistakes made by the town officers could have been allowed to pass uncorrected.

A careful examination will show that there is little analogy between those cases and the one now before us.

To sustain the present suit against the sureties we have a written obligation which has been vitiated as an instrument of evidence by the deliberate intentional act of the plaintiffs’ agents, an act done apparently to secure themselves from the blame which might attach to them for their carelessness in accepting an inadequate security, but an act which as effectually deprived the town for which they acted of any right of action against these sureties upon this bond, as if they had never executed any bond at all. It is not their deed. But there is another view which is equally fatal to the plaintiffs’ case. The plaintiff town presents itself here in this very suit in the attitude of ratifying this act of their selectmen.

Whatever might have been thought of the elaborate and ingenious effort of counsel to establish the position, that the inhabitants of the town ought not to be affected by what he claims to have been the unauthorized act of their agents, if they had brought suit on the bond as originally given, it can hardly avail when we find that the first count in the writ asserts the giving of a bond by the defendants in the sum of twenty-five thousand dollars. The plaintiff corporation seems to have been ready to avail itself of the alteration if it passed unnoticed. They can do so only at the hazard of losing the benefit of their bond altogether. Asserting a claim here upon the bond in its altered condition, they must be held to have ratified the act of their selectmen in permitting the alteration and to stand in the same position as a private corporation or an individual does, in bringing suit upon an altered instrument.

That position is not improved by any acts or omissions on the part of the sureties. They gave no implied authority to the principal and to the town officers to insert such sum as they might agree upon, by executing the collector’s bond in blank, as was done in the case of South Berwick v. Huntress, 53 Maine, 89.

The condition of the mortgage of the principal’s property received by two of the sureties to secure them against all “legal liabilities” upon this and two other bonds, is so framed as to exclude the idea that they intended to ratify the alteration.

Even if they had not already paid upon the other bonds a sum larger than the estimated value of the mortgaged property, the reception of this mortgage could not be construed as a ratification.

As to them the plea that this is not their deed is well maintained.

Such a defence cannot avail the principal who made the alteration.

Plaintiffs have leave to discontinue as to the sureties.

Walton, Dickerson, Danforth and Yirgin, JJ., concurred.