149 Mich. 558 | Mich. | 1907
(after stating the facts). The court below was of opinion that complainant was accountable to the township for no more money than he received, for which reason a court of law was the proper forum in which to settle such differences, if any, as shall arise between them; that having given defendant Smock a receipt for more money than he received, complainant was entitled to a return of the receipt or the balance of funds necessary to make the receipt accord with the facts, and
No case is made for an accounting. The township and defendant Smock had a settlement as the law requires and neither party to it questions it. I do not understand that after making his settlement (accounting) with the township board an outgoing treasurer relieves himself and his sureties to the extent that he succeeds in inducing his successor to believe that vouchers for which he has already received credit are uncanceled. In a suit of the township against complainant, he would be obliged to account for the money he received from his predecessor. The receipt he gave his predecessor would be, unexplained, evidence of the amount he did receive. It is mere evidence and can be contradicted or explained by parol testimony. Johnson v. Insurance Co., 39 Mich. 33; Vyne v. Glenn, 41 Mich. 112; Powell v. Powell, 52 Mich. 432; Hart v. Gould, 62 Mich.. 262. The grounds of equitable jurisdiction asserted are fraud in obtaining the receipt; inability to obtain, otherwise, immediate relief from the apparent liability evidenced by the receipt; possible inability, arising from death or lapse of time, .to establish the invalidity of the receipt, when, if ever, it shall be offered to bind complainant, his estate, or his sureties. Complainant was elected to office, in April, 1905. His bill of complaint was verified December 14th of that year, and the decree of the court below is dated September 14, 1906. Whether any action in the premises has been taken by the township, we are not informed. I think the mere fact that a receipt is given at the conclusion of an alleged fraudulent transaction relating to personal property is not enough to establish the jurisdiction of a court of equity to investigate the transaction for the purpose of canceling or refusing to cancel the receipt. I have found no precedent for such action. It is urged that in this cas'e there is the additional fact that complainant may not himself attack the transaction in a suit at law but must await at
The decree is reversed, and a decree will be entered here sustaining the demurrer of defendant Smock, with costs of both courts. The record will be remanded and complainant will be given 30 days in which to file an amended bill if he desires to do so.
In my opinion this case should be affirmed, being ruled by the following cases: John Hancock Mut. Life-Ins. Co. v. Dick, 114 Mich. 337 (43 L. R. A. 566); Fidelity Mut. Life-Ins. Co. v. Blain, 144 Mich. 218; Fred Macey Co. v. Macey, 143 Mich. 138, and cases cited.