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The principal defence set up at the trial was, that in the application for insurance false answers had been given to the questions propounded by the defendants. Those questions were, in substance, whether the person whose life was proposed for insurance had had certain diseases, or, during the next preceding seven years, any disease, and the answers given were that he had not. It was in reference to this that the court instructed the jury it was for them to determine from the evidence whether the person whose life was insured had, during the time mentioned in the questions propounded on making the application, any affliction that could properly be called a sickness or disease, within the meaning of the term as used, and said, “ For example, a man might have a slight cold in the head, or a slight headache, that in no way seriously affected his health or interfered with his usual avocations, and might be forgotten in a week or a month, which might be of so trifling a character as not to constitute a sickness or a disease within the meaning of the term as used, and which the party would not be required to mention in answering the questions. But again, he might have a cold or a headache of so serious a character as to be a sickness or disease within the meaning of those terms as used, which it would be his duty to mention, and a failure to mention which would make his answer false.”

There is no just ground of complaint in this instruction, either considered abstractly, or in its application to the evidence in the case. It was, in effect, saying that substantial truth in the answer was what was required. If, therefore, the defendants have been injured it was by the verdict of the jury rather than by any error of the court.

The judgment is affirmed.


. [JANUARY, 1874.]

The word “ toheld to be inclusive — to December 31, held to include December 31.

THE opinion of the court was delivered by.

AGNEW, C. J. The contract in this case was for the sale of “one thousand barrels good green merchantable crude petroleum, forty gallons to the barrel, gravity forty to forty-six degrees, at a temperature of sixty degrees Fahrenheit, to be delivered, buyer's option, at any time from this date to December 31, 1870, in bulk cars," &c. Does the expression to December 31, 1870, include the 31st day?

This question cannot be decided by cases which interpret dubious expressions in law or rúles of court, in order to preserve rights or fulfil special purposes. What we are concerned with here is in ascertaining the meaning of the parties in this particular contract. The preposition to is prop


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erly applicable to place or position, while till or until properly applies to “ time.” Yet to is in common parlance, and sometimes in legal phraseology, applied to time. It has also various significations indicating toward, to, and into. In regard to time, it often indicates a coming or passing into a day, as well as arrival at it. Thus it is said, “ The court adjourned from the 30th to the 31st of December,” or “ from the first to the thirty-first,” or “ from day to day.” Now in each instance we understand that the court will reassemble on the last day. Whenever the expression is from day to day, or from one day to another, we always understand the second day to be included. Again, one says, “I have to the 31st to do a thing ;" or the other says, “ You shall have to the 31st to do it.” No one doubts the party can do the thing on the 31st. Such is the time designated for performance. Another expression to be found in this contract affords an illustration, to wit, “ Gravity from forty to forty-six degrees.” It cannot be doubted if the oil be of a gravity of either forty or forty-six degrees it would fill the contract. Let us expand the language of this writing somewhat. The words of it are, “ To be delivered, buyer's option, at any time from this date to December 31st, 1870.” Then read it thus, the seller saying, “I will deliver to you one thousand barrels of oil at any time from this date to December 31st, 1870, at your option.” Can it be doubted that when the seller says, “ I will deliver at your option,” the buyer may call for the delivery of the oil on the 31st, and the seller would be bound to deliver it. The parties did not refer themselves to “decided cases," but had their own meaning, which was that the limit should be the 31st day of December;— that, the last day of performance. The selection of the last day of the month and of the year has some influence in fixing that as the last day of performance, as if the parties had said, “ All the month of December, or all this year.” January 1st begins a new period. The time is necessarily mutual, so that if the buyer may demand on the 31st, the seller may deliver on the 31st.

The fact that a subsequent contract adds the word “inclusive” after the 31st of December, does not interpret the prior contract, which is without the word “inclusive.” The earlier contract must stand on its own language. The insertion of the word in the second contract may have been due to greater precision, or greater precaution to prevent misconstruction, and yet they may mean the same thing. It does not follow because the latter is expressly " inclusive," the former meant to be 6 exclusive.” We, therefore, interpret the language as we think the parties intended, to wit, that the buyer could call for the oil in the year 1870, and before the 1st of January, 1871; the word “to” having no precise and definite signification to require exclusion of the last day, by reason of its plain grammatical meaning.

The case of Cleveland v. Sterrett, 20 P. F. Smith, 204, was decided in the same spirit of liberal interpretation to reach the evident intent of the parties.

The judgment of the court below is reversed, and judgment is now entered for the plaintiff on the case stated, for the sum of fourteen hundred dollars, with interest from July 12th, 1873.

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Held: that the sureties upon the bond of a cashier of a national bank were not

liable to the directors of the bank for losses caused by the defalcation of the cashier, where the sureties were misled as to the condition and management of the bank by the publication of reports required by the national currency act, and the bond was entered into subsequent to and the defalcation occurred before the publication

of the reports. It seems that the publication of the reports after the sureties had entered upon the

bond did not estop the directors to allege the existence of facts that could be established only by proving the falsity of the reports.

THE opinion of the court was delivered by

LINDSAY, J. The Lebanon National Bank organized under the provisions of the act of Congress of June 3, 1864, and commenced business about the 3d of August, 1869, when Mitchell was selected as cashier, and was immediately inducted into office. Though required to execute bond immediately, the bond, for reasons not explained, was not delivered until the first of November following. In June, 1870, Mitchell was discovered to be a defaulter to a large amount, and failing to make good the losses occasioned by his breach of duty, this action was brought to recover the amount from his sureties. The defalcations for which the sureties are sought to be held liable are alleged to have occurred between the 14th of September, 1869, and June 3, 1870. The court below adjudged that they should account for such as occurred before the acceptance of the bond, and rendered judgment against them for $8,089.

The technical defences relied on are not noticed further than that the court does not regard it as essential that banking institutions, doing business under the national currency act, shall signify their acceptance of the official bonds of their cashiers by a written memorandum to that effect, entered upon the journal or minute-book by their directory. The acceptance of the bond may be presumed from the fact that after it has been submitted to the directory for approval, it is retained by the bank, and the cashier permitted to enter upon, or continue in, the discharge of his duties; and that it was presented to and approved by the directory may be established by oral testimony. 12 Wheaton, 64; 3 Pickering, 335; 2 Met. (Mass.)° 522; 1 Har. & G. 324, and Morse on Banking, 223.

The first business transacted by the bank, after its organization, was the purchase of the assets of the banking firm of Burton, Mitchell & Co. Mitchell, the defaulting cashier, was a member of that firm, and had been acting as its cashier. The National Bank accepted from Burton, Mitchell & Co. bills and notes represented to amount to about-$51,000, but which in point of fact amounted to only about $39,000. This discrepancy was

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[No. 2. the result of embezzlements by Mitchell, while cashier for the firm, of which embezzlements Burton, the senior member of the firm, and afterward a director of the National Bank, may be presumed to have been ignorant. The directory seems to have relied implicitly upon the integrity of Mitchell, and he was thereby enabled not only to conceal the frauds practised on Burton, Mitchell & Co., but by such concealment to commence the discharge of his duties as cashier of the National Bank by a fraud upon it. In October, 1869, the banking association, pursuant to the provisions of section 34 of the national currency act, and the amendment thereto of March 3, 1869, made a report to the comptroller of the currency, and on the 23d of that month caused it to be published in the Lebanon Clarion, showing in detail and under appropriate heads its resources and liabilities at the close of business, October 9, 1869. This report was sworn to by Mitchell and certified to be correct by three members of the directory. Similar reports were made and published in the same newspaper touching the condition of the association on the 22d of January, 24th of May, and 9th of June, 1870. None of these reports showed embezzlements by the cashier or any other officer, or in the least excited suspicion, but on the contrary tended to inspire the public with confidence in the prosperity of the association, and in the integrity of those to whom its business affairs were committed.

Appellants plead and rely upon the statements thus officially promulgated by the officers of the bank, as constituting an estoppel upon it to assert against them claims that cannot be established without showing that these official reports, made and published in obedience to law, were not true. The court is inclined to the opinion that they cannot claim immunity upon account of any report made after they became the sureties of Mitchell. The reports are sworn to by him, and it may be assumed, that upon his representations, and upon what appeared from the books of the association, as kept by him, the directors were induced to certify to their accuracy. The directors may have been negligent in the discharge of their duties, and this negligence may have enabled Mitchell for the time to misappropriate the funds of the bank, and to conceal its true condition by the false reports made to the comptroller of the currency, and by false entries upon the books of the bank; but this negligence cannot avail the sureties who covenanted that their principal should “ well and truly perform the duties ” of his position, and should “ well and truly account for all moneys and other valuables that might pass through his hands." Their covenant is unconditional, and no failure of duty on the part of the directors, short of actual fraud or bad faith, can be deemed sufficient to exonerate them from its performance. The exaction of the bond implies that the association was not willing to rely alone upon the watchfulness and care of the directory.

There is a question, however, arising upon the facts stated in the pleadings and fully sustained by the proof, the decision of which it seems must be in favor of the sureties, and this question being decided in their favor, their exoneration from liability on account of Mitchell's misconduct while acting as appellee's cashier, and after the bond was delivered and accepted, follows as a necessary sequence. There is no principle of law better settled than that persons proposing to become sureties to a corpoVol. I.)


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ration for the good conduct and fidelity of an officer to whose custody its moneys, notes, bills, and other valuables are intrusted, have the right to be treated with perfect good faith. If the directors are aware of secret facts materially affecting and increasing the obligation of the sureties, the latter are entitled to have these facts disclosed to them, a proper opportunity being presented. Morse on Banking, 206. White & Tudor, in their note to the case of Rees v. Berrington, second volume Leading Cases in Equity, 360, state the rules as follows: “ Wherever, therefore, there is any misrepresentation or even concealment from the surety of any material fact which, had he been aware of, he might not have entered into the contract of suretyship, it will thereby be rendered invalid, and the surety will be discharged from his liabilities.” The case cited fully sustains the principle as stated. Mr. Justice Story takes even broader ground: “ Thus if a party taking a guarantee from a surety conceals from him facts which go to increase his risk, and suffers him to enter into the contract under false impressions as to the real state of facts, such concealment will amount to a fraud, because the party is bound to make the disclosure ; and the omission to make it under such circumstances is equivalent to an affirmation that the facts do not exist." 1 Story's Eq. 215.

It may not be true that the directors of the Lebanon Bank had actual knowledge of the frauds committed by Mitchell while cashier of Burton, Mitchell & Co., nor of the false entries made by him on the books of the institution under their control, in order to conceal those frauds ; but it is true that either with or without examination, they published reports of the affairs of the institution, the nature, if not the necessary effect of which was to mislead the public. It cannot be doubted that these reports reached the eyes of appellants, who all resided in or near Lebanon, and read the local paper in which the publications were made, and as they were each large stockholders in the bank, it may be assumed that they read and examined at all events the first official statement made by the officers of that institution. If it could be shown that the directors were cognizant of the fraud of Mitchell, committed on the first day of his connection with the bank, and in the performance of his duty as cashier, and that they concealed the fact from appellants, and published the false statement of October 9, 1869, there could be no doubt that the concealment and publication would amount to a fraud upon the sureties.

It is proper, however, to consider the legal effect of two circumstances connected with the failure of the directory to apprise the sureties of the fraud of Mitchell, and of the publication of October 23 in the Lebanon newspapers. The first is, that those directors who were witnesses in this case state that they were not apprised of the perpetration of this fraud; and the second is, that the report of October 9, 1869, published on the 23d of that month, was but a statement of the condition of the affairs of the bank, as shown by its books. Upon the first question it is to be observed that several of the directors, and among them Burton, of the former firm of Burton, Mitchell & Co., were not sworn at all, and that it appears upon the journal kept by the directory, as of date August 3, 1869, that “the bills of exchange and accounts of the firm of Burton, Mitchell & Co., bankers, having been submitted for examination, and examined,

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