12 Iowa 360 | Iowa | 1861
Without reciting the conditions of the bond, it is sufficient to state that they were such as was required by the Code of 1851, § 324. The petition alleges, that defendant did not exercise all or any reasonable care or diligence in the preservation and lawful disposal of all securities, or other property appertaining to his office; that he did not promptly account for all balances of money remaining in his hands at the termination of his office, and that he did not payjover to the persons entitled thereto all money which came into his hands by virtue of his office.
As stated in the facts found by the court, it appears from the testimony that $600 of the county warrants received by the treasurer were abstracted or stolen from the vault connected with his office. These warrants were deposited in their proper place, and in their mere preservation the defendant, it may be conceded, exercised reasonable care and diligence. His liability was made to depend upon his failure to properly cancel such warrants, whereby after their abstraction they were again put in circulation and paid from the county funds.
But it is urged that by the ageerment defendant was only to be held liable for negligence in receiving or keeping the warrants ; that there is no specific charge of a failure to thus endorse the warrants, and that therefore under the issue joined, the finding was erroneous. No objection was made that the breaches set out were not sufficiently specific, nor does it appear that any exceptions were taken to the testimony offered to establish the neglect or want of diligence as found by the court below. The language of the agreement shows, that the parties submitted as one of the issues to be tried, and the main one,, “whether the indebtedness or any part thereof accrued from such negligence of the defendant in the receiving or keeping of the county orders which came into his hands as such treasurer, as to make him liable therefor on his official bond.” In view of all these facts, we do not think the objection tenable when urged for the first time in this court. Not only so, but what possible negligence could there be in receiving these warrants, if not that which is here shown ? What could the parties have intended, if not this failure to cancel the warrants at the time of their receipt ? The indorsement is required by law to be made at the time the warrant is received, and it is not extending unfairly nor improperly the language used by the parties, to make it include the duty of endorsement as a part of the act of receiving.
The judgment is affirmed.