39 Minn. 125 | Minn. | 1888
The defendant Willard was treasurer of Pine county •from the 1st of March, 1877, until about the 1st of December, in that year, when he resigned. He had also been the treasurer for the immediately preceding term. The other defendants were sureties upon Willard’s official bond for the term commencing in March, 1877. This action was brought to recover for an alleged defalcation during the second term. Upon a trial of the cause, the court found a deficiency of $875.15, for which, with interest from December 1, 1877, the defendants were held to be liable. It is contended that the evi- . deuce did not justify the finding that this defalcation occurred during the second term of the officer, for which alone these sureties are re- . sponsible; but that it, or at least the greater part of it, occurred during the previous term. In December, 1877, Willard ceased to hold -the office, and it was then transferred to a successor. The evidence .abundantly justified the conclusion that he did not then account for . or turn over to his successor the funds chargeable to him, and that there was then a deficit in the funds belonging in the treasury, to an amount at least equal to that found by the court. This made a case -for a recovery against these defendants, unless at least it affirmatively appeared that the funds thus deficient had not been received .during this second term, and had not been in the treasury during that period; the burden being thus cast upon the defendants to over- • come the prima facie case which was made out by proof of the default to account for the funds belonging in the treasury, and properly .chargeable against him at that time. Kelly v. State, 25 Ohio St. 567; Bruce v. U. S., 17 How. 437; Hetten v. Lane, 43 Tex. 279. It is not supposed, however, that these sureties would be chargeable .if all of the funds received during the second term, or which at any
There is evidence going to show that Willard, during his former term, as well as during the second term, misappropriated' the public funds, and that never after June, 1876, did he have in the treasury the funds belonging there. It appears that no bank or other depository was ever designated by the proper officers of this county for the deposit of public funds, as prescribed by chapter 38, Laws 1873. It •also appears that Willard was accustomed to deposit such funds in certain banks in the city of St. Paul, to the credit of “Don L. Willard, treasurer of Pine county;” and, as appears by his own testimony, that he used such funds the same as he did his own. Considering such testimony, in connection with what is shown as to the .amounts of money received by Willard as treasurer during his second term, we think that the court was justified in its conclusion that Willard had misappropriated and failed to account for funds received •during this second term to the extent of at least $875.15. That Willard misappropriated funds during that term to a far larger amount seems, from his own testimony, to be most probable; for it was a •conversion and embezzlement of the trust funds to deposit them to his own credit, so as to be undistinguishable from his private funds, •and to use and treat such deposits as though it had been private property. The proofs were not such as to require the court to adopt the conclusion that the deficit found to exist in December, 1877, was referable to a period prior to the then current term, and that the funds coming into the treasurer’s hands during the latter term had been faithfully kept and disbursed. The evidence tended to establish a contrary conclusion. There is some evidence tending to show that Willard made good the deficit with respect to his former term; and if in fact the money was in any way brought into the treasury, even though it was intended to be, and was afterwards, again abstracted, these defendants would be responsible therefor. Parker v. Medsker, 80 Ind. 155; Goodwine v. State, 81 Ind. 109; Ingraham v. Maine Bank, 13 Mass. 208. And even if the prior defalcation were not made good by repayment of money into the treasury for that purpose, it would not necessarily follow that this deficit, found to exist
The appellants admit and claim that the deposit of the funds, a» above indicated, in itself constituted an embezzlement; and they contend that, inasmuch as the county commissioners knew'that Willard had so kept the public money during the prior term, it was a fraud upon these sureties to accept their bond, and that this avoided the bond. This position cannot be sustained. If the board did know that Willard had embezzled money during the former term, they were under no obligation to voluntarily warn these defendants, nor to protect them from Willard’s possible dishonesty in the future, by declining to accept their tendered suretyship. If the bond was sufficient, it was their duty to accept it.
Judgment affirmed.