48 Neb. 496 | Neb. | 1896
By error proceedings, plaintiff in error seeks to reverse a judgment rendered against it, in tbe sum of $3,641.14, by tbe district court of Antelope county. There were admitted by tbe answer in said court tbe averments of tbe petition of tbe county of Antelope that tbe Commercial State Bank of Neligb, tbe defendant, from December 1, 1891, till September 26-, 1894, was an incorporated bank, doing business as sucb in Antelope county; that from tbe 7tb day of January, 1892, to the 4th day of January, 1894, J. D. Hatfield was tbe duly elected, qualified, and acting treasurer of Antelope county, and that on or about January 10, 1892, tbe Commercial State Bank of Neligb applied in writing for tbe privilege of keeping tbe funds belonging to said county and controlled by said county treasurer. Tbe application, which it was denied by tbe answer was accepted, was in tbe following language:
“Nelig-h, Neb., January 1, 1892.
“To Hon. J. D. Hatfield, Gounty Treasurer, Antelope ■County: Tbe Commercial State Bank of Neligb,Nebraska, hereby agrees to comply with all tbe rules and regulations governing county depositories provided by tbe laws of tbe state of Nebraska, as set forth in tbe Session Laws of 1891, and to pay to Antelope county, Nebraska, interest at tbe rate of five per cent per annum, interest payable monthly, on all county funds deposited with said Commercial State Bank by tbe county treasurer; provided tbe Commercial State Bank is made tbe depository of all funds controlled by tbe county treasurer by virtue of his official position. Tbe Commercial State Bank further agrees to pay all Antelope county warrants at par
“W. T. Wattles, “Presiden t.
“K. T. Richards,
“Cashier.”
In the answer there was also a denial of the averment in the petition that there was filed with the county clerk of Antelope county a bond in the following language:
“Know all men by these presents, that we, the Commercial State Bank of Neligh, Nebraska, as principal, and G. W. Wattles, of Carroll, Iowa, Sumner Wallace, of Rochester, New Hampshire, and W. T. Wattles, K. T. Richards, W. G. Galloway, C. Fisher, W. E. Relf, H. H. Jurgling, Wm. Campbell, Carl Roben, H. M. Cox, and J. H. Mills, of Neligh, Nebraska, as sureties, are held and firmly bound unto J. D. Hatfield, county treasurer of Antelope county, Nebraska, and unto Antelope county, Nebraska, in the sum of one hundred and fifty thousand dollars ($150,000), lawful money, to be well and truly paid to the said J. D. Hatfield, treasurer of Antelope county, Nebraska, or his successor in office. For the faithful performance of such obligation, we bind ourselves, our heirs, administrators, and assigns forever.
“The condition of the above obligation is such that whereas, the said the Commercial State Bank of Neligh, Nebraska, has been designated as a depository of the funds of Antelope county, Nebraska, which shall come into the possession of said J. D. Hatfield as treasurer of said county: Now, "therefore, if the said Commercial State Bank shall well and truly pay to the said J. D. Hatfield, treasurer of Antelope county, Nebraska, or his or their order, all sums of money they receive on deposit from treasurer aforesaid, then this obligation to be null and void, otherwise to be in full force and effect.”
To this bond was affixed the names of the sureties therein described. There were in the answer denials of the averments of the petition that said bond was ap
It is not deemed essential to consider whether or not the bond above given was in strict compliance with the provisions of section 8, chapter 50, Laws, 1891, for a demurrer of all the parties who signed it was sustained, and thenceforward the action proceeded alone against the bank under the statute upon its written proposition. The bond, therefore, serves no purpose in this action, except in so far as its presentation to, and approval by, the proper county authority qualified the bank to be a depository. We find in the records of the board of supervisors of Antelope county a report of a committee of the board reciting that the county treasurer had selected the above named bank as a county depository, and had accepted the bid of the bank. In this report there was a recommendation that the bond of the bank be approved. There is in the bill of exceptions no transcript of the record of the board of county supervisors showing that this report was acted upon. The county treasurer,
The bank, however, insists that there was error in the refusal of the court to permit the filing of a certain amended answer tendered after the trial was concluded. In addition to the issues presented by the original answer, which have been fully described, this amended answer denied that a bond had been filed, and of new matter contained the following averments: “At the time of making the application set out in the petition, it was assumed and believed by J. D. Hatfield, then county treasurer of said plaintiff, and by defendant, that the said county treasurer had the right and authority to designate the depository for the funds of the county, subject to legal deposit under the law and to draw interest, to-wit, the soldiers’ fund, the county general fund, the county bridge fund, the county poor fund, and a court house fund; that none of the other funds of the county could be loaned or deposited under the law; that acting-under such understanding and agreement the defendant could only obtain the said funds for deposit, and could only apply for those said funds, the defendant made the application to said county treasurer set out in paragi’aph three of said petition; that in making said application on the part of said defendant, and in accepting said application on the part of said treasurer, it was mutually understood and agreed that said application was made to include only said named funds; that, acting on said understanding and agreement, the said county treasurer
The above quotation discloses that the bank’s claim was that the written agreement should be controlled by a prior or contemporaneous oral agreement limiting the liability to pay interest upon certain funds. The parol evidence tendered to show this fact was, upon objection, excluded by the court. This amendment was offered after the evidence had been introduced, and was not to conform the pleadings or proceedings to the fact proved.
Q. Have you brought with you, in obedience to subpoena, the books of the bank showing deposits of J. D. Hatfield, treasurer of Antelope county?
A. I have not.
A. They are not in my possession.
Q. Where did you see them last?
A. At the depot.
Q. What depot?
A. Neligh.
Q. When?
A. Last winter some time.
Q. What time in the winter?
A. Shortly after the consolidation of the two banks.
Q. Before or after the service of the subpoena?
A. I don’t remember the date.
Q. Yon remember you were served with a subpoena to bring these books?
A. Yes, sir.
Q. Did you have the books in your possession at that time?
A. I don’t know.
Q. Don’t you know whether you had the books at the time you were served with a subpoena to produce the books?
A. I don’t know.
Q. What became of them?
A. They were shipped to the stockholders.
Q. Your brother?
A. To the Rochester Loan & Banking Company, of . which he is agent.
Q. At Omaha?
A. Yes, sir.
Q. You are not prepared to say whether that was before or after you were served with the subpoena?
A. Not without looking up the date of the shipment and date of the subpoena.
Q. You can find that by morning?
A. I think so.
No further mention of these books was made during the trial, and, as they were not produced, the bank deprived the court and jury of what might have assisted
We cannot summarize our views of this case more satisfactorily than by merely quoting the first instruction given by the court, in the following language: “You are instructed in this case to find for the plaintiff, and you are to assess the amount of plaintiff’s recovery at what would be the interest on the county funds of Antelope county deposited with the defendant, the Commercial State Bank, by J. D. Hatfield, while county treasurer of Antelope county, Nebraska, at the rate of five per cent per annum, interest payable annually, less the amount of $273, which is admitted to have been received by said county from said bank, from the first day of January, 1892, till the first day of January, ¡1894, together with seven per cent interest thereon from said first day of January, 1894.” The judgment of the district court is
Affirmed.