
    No. 3899.
    Canal and Claiborne Streets Railroad Company v. Succession of John Armstrong.
    This is a suit against the succession of John Armstrong, •who is alleged to have been security on a bond given by one J. G-. Campbell, as secretary and treasurer of the Canal and Claiborne Streets Railroad Company. As there is no sum fixed in the penal clause of the bond, the instrument contains no written promise on the part of Armstrong to pay any particular amount. Therefore his succession is not liable on the bond. As no amount is fixed in said bond, there is no evidence that the parties ever came to an agreement as to the extent of the obligation of Armstrong. The contract was incomplete. Assuming that the
    was Assuming that the signing and delivery of the instrument authorized or implied authority granted to the holder to fill in the amount — which this court does not admit — the death of Armstrong revoked the mandate and no sum has been filled in. It has
    It has frequently been held that omissions in filling judicial bonds are supplied by the law. But in the case at bar the bond is in no sense judicial. It is an ordinary conventional bond given by an officer of a corporation for the faithful performance of his ditties, and as the surety promised to pay no specific sum, there is no obligation for this court to enforce.
    APPEAL from the Second District Court, parish of Orleans. Duvigneemd, J.
    
      M. D. Ogden, for plaintiff and appellee. Finney <& Miller and H. N. Ogden, for defendant and appellant.
   Morgan, J.

By the fifteenth article of the company’s charter, the board of directors were authorized to appoint a secretary and other clerks, and to remove them at pleasure.

John Gr. Campbell was appointed secretary on the second of September, 1867. He gave bond, with Jolin Armstrong and W. C. Falham as securities. The bond is as follows :

“ Know all men by these presents, that we, J. Gr. Campbell, as principal, and John Armstrong and W. C. Falham, securities, are held and firmly bound insólido unto tlie Canal'and Claiborne Streets Railroad Company, or assigns,--, for which payment well and truly to be made, we bind ourselves, our heirs, executors and administrators in solido firmly by these presents, and do hereby waive the benefit of division and discussion granted by law to sureties.

“Now, the condition of the above obligation is such, that whereas the above bounden J. Gr. Campbell has been chosen and appointed secretary and treasurer of the aforesaid Canal and Claiborne Streets Railroad Company, by reason whereof divers sums of money, goods and chattels and other things, the property of said corporation will come into his hands; if the said J. G-. Campbell, his heirs, executors and administrators, at the expiration of his office, upon request to him or them made, shall make or give unto the said company, or their agent or attorney, a just and true account of all such sum or slims of money, goods, chattels and other things, as have come into his hands, charge or possession, as secretary and treasurer as aforesaid, and shall and do pay and deliver over to his successors in office or any other 28 person duly authorized to receive the same, all such balance or sums of money, goods and chattels or other things which shall appear to be in his hands and due by him to said company; and if the said J. G-. Campbell shall well and truly, honestly and faithfully in all things, serve the said company as secretary and treasurer as aforesaid, during his continuance in office, then the above obligation to be void; else, to remain in full force and virtue.”

On the eleventh of January, 1869, Campbell tendered his resignation to the company, which was received, but never accepted.

On the nineteenth of January, at a meeting of the board, Campbell was re-elected secretary, but at a reduced salary. Subsequent to his re-election there was a deficit in his accounts amounting to $9809 65.

This suit is instituted against the succession of Armstrong, to make it liable for the amount of Campbell’s deficit.

The defense is twofold: First, That no amount is stipulated in the bond. Second, That the defalcation occurred after Campbell’s second election.

First — The object in stating an amount in a bond is to definitively fix the liability of the obligors and their sureties; but a man may bind himself in an indefinite amount if he chooses to do so, and this we think is what Armstrong did in this case. He bound himself that Campbell, at the expiration of his office, should give to the company a true account of all money, goods, chattels and other things as may have come into his hands, charge or possession as secretary and treasurer. As secretary, $9809 65, belonging to the company, were not accounted for by him. His surety is responsible therefor.

Second — There was no time specified as to the duration of his term of office; neither was there a limit fixed to the time the bond was to last. Campbell’s re-election by the board did not then change his position, or affect the obligation' of his surety.

Judgment affirmed.

On Rehearing.

Wyly, J.

After further examination we have come to the conclusion that the succession of John Armstrong is not liable on the bond. As there is no sum fixed in the penal clause, the instrument contains his written promise to pay no particular amount.

Suretyship can not be presumed; it ought to be expressed, and is to.be restrained within the limits intended by the contract.” Revised Code 3039.

It is manifest from the instrument that Armstrong, the surety, did not intend to bind himself for an unlimited amount. He certainly did not undertake to go security for all the money, goods and property of the Canal and Claiborne Streets Railroad Company that might come into the hands of Campbell, its secretary and treasurer. The writing contains no such promise.

As no amount is fixed in the bond, there is no evidence that the parties ever came to ah agreement as to the extent of the obligation of Armstrong. The contract was incomplete. We can not now say that the succession of Armstrong owes the plaintiff $9809 65, the amount of Campbell’s defalcation; because when Armstrong signed the instrument there is no evidence that he and the plaintiff agreed that he, in. such a contingency, should pay that sum.

Without making a contract for the parties, this court can not determine that the defendant owes the plaintiff anything. Assuming that the signing and delivery of the instrument authorized or implied authority granted to the holder to fill in the amount, which we do not admit, the death of Armstrong revoked the mandate, and no sum has been filled in.

The promise to pay the debt or discharge the obligation of another can only be proved by written evidence. Acts of 1858, page 148.

The obligation of Campbell extended to the full value of the money and property confided to him as secretary and treasurer of the Canal and Claiborne Streets Railroad Company. He was bound to account for all of it; and if he made way with it, an action would lie against him for the full value thereof. Armstrong, as we have stated, did not assume an obligation so extensive, because the instrument contains no such promise. To what extent then did he agree to be bound for Campbell’s fidelity as an officer of the railroad company1? No amount is fixed in the bond, and there is no written evidence that the parties came to an agreement on this important point. The instrument stands thus: In a certain contingency, namely, on the defalcation of Campbell, Armstrong was to pay, but what amount the parties failed to agree on. The contract of suretyship was not completed.

The case of Pennyman v. Barramore, 6 N. S. 494, cited by plaintiff, is not applicable. That was a sequestration bond, where the amount was not properly filled in; it was a judicial bond, and the surety signed in reference to the law fixing the amount and the conditions thereof. It has frequently been held that omissions in filling judicial bonds are supplied by law, but in the case at bar the bond is in no sense judicial; it is an ordinary conventional bond, given by an officer of a corporation for the faithful performance of his duties; and as the surety promised to pay no specific sum, there is no obligation for the court to enforce.

It is therefore ordered that our former judgment be set aside,'and it is decreed that the judgment of the court a qua be annulled, and plaintiff’s demand he rejected with costs of both courts»  