89 P. 593 | Ariz. | 1907
— The appellants have presented several assignments of error, but their entire case is substantially covered by the first, second, third, and fourth assignments. The first error assigned is the overruling of the demurrer to the complaint, upon the ground that there are two causes of action united in the one count, in that it is based upon the breach of two separate bonds; the one bond dated July 18, 1896, and the other dated August 1, 1900. The first bond was executed on the appointment of the defendant Ewing, and, under the provisions of the government for the renewal of bonds every four years (Act March 2, 1895, c. 177, sec. 5, 28 Stat. 807), the second was given, as a renewal bond, at the expiration of four years. This act, however, which provides that official bonds shall be renewed every four years after their dates, further provides that the liabilities of the principal and sureties on all official bonds shall continue, and cover the period of service ensuing until the appointment and qualification of the successor of the principal. In this instance, the renewal bond was given because the term of service of Ewing, the principal, extended more than four years without the appointment of any successor to him in the said office. The delinquency upon which this suit was brought arose in the account during the period after the execution of the renewal bond; the renewal bond, however, being, under the statute, a mere renewal of the original bond of the officer, and ■cumulative in its effect, it was proper that both instruments should be set forth in the pleading. 27 Am. & Eng. Eney. of Law, 2d ed., 537. The other grounds on which the demurrer was based are not tenable. It was alleged that the complaint “failed to show wherein the plaintiff had suffered any damage,” and that the complaint “failed to allege facts showing a breach of the bond.” It is a sufficient answer to these
It is next alleged that the court erred in refusing to instruct the jury to return a verdict in favor of the defendants at the close-of the plaintiff’s case, on the ground that there was no evidence showing a material misrepresentation of fact in the Russell voucher. We do not understand that it was incumbent upon the government to establish by the evidence in this case that the defendant Ewing had made any material misrepresentations of fact, in regard to the Russell voucher. This suit was brought for the alleged failure of the defendant Ewing to honestly account for, and promptly and faithfully pay over, the public money alleged in the complaint to have been in his hands on December 31, 1900, as such officer. The only burden of proof upon the plaintiff was to establish, by a preponderance of the evidence, that there were public funds in Ewing’s hands in the amount charged, on the date given, and that he had failed or refused to pay them over to the government. This fact was established by the certified transcript of his account with the United States, as shown by the books of the Treasury Department, which the plaintiff had placed in evidence, and which is, by section 886 of the United States Revised Statutes (U. S. Comp. Stats. 1901, p. 670), made legal evidence authorizing a judgment. United States v. Drachman, 5 Ariz. 13, 43 Pac. 222; United States v. Ellis, 2 Ariz. 253, 14 Pac. 300. At the time the motion to instruct for the defendants was made, the fact of the delinquency in the amount stated was practically conceded, because there had been no evidence on the part of the defendants offered to offset or contradict the testimony of the plaintiff. The plaintiff had, therefore, at this time, made a prima facie ease, and the motion of the defendants was properly denied.
The refusal by the judge of the lower court to give three several instructions, requested by the defendants at the close of their evidence, is next assigned as error. In the first instruction, after referring to the balance found due the government upon the auditing of its account with the defendant Ewing, and showing that such balance arose from the refusal of the accounting auditors to approve the voucher for $1,260', and the consequent recharging of that amount against Ewing by the said accounting officers upon their finding that it contained material misrepresentations, defendant asked the court to charge the jury:
“I charge you that the plaintiff, the United States, must establish to your satisfaction, by a preponderance of the evidence, that there was a material misrepresentation of fact in regard to the amount due and paid on said voucher.”
“Instruction 2: You are instructed that if you believe from the evidence in this case that the defendant Ewing, as the principal in the bonds sued upon, honestly and faithfully paid the said Bussell the sum of $1,280 for furnishing labor and material upon and constructing the irrigating plant heretofore mentioned, and that, at the time of the payment to said Bussell of said sum, it was due by reason of the fact that said Bussell had completed his contract according to the*11 plans and specifications prepared for the erection of said irrigating plant, then you should find for the defendant.”
“Instruction 3: You are further instructed, though you may believe from the evidence in this ease that the defendant Ewing received from said Russell $150 out of the $1,260 payment, and that said Ewing thereafter used said $150 for the benefit of the United States and in and about and on account of said irrigating plant, doing things which were not called for by Russell’s contract and the plans and specifications relating to said irrigating plant, nevertheless, if you believe, from the evidence in this case, that said Russell received the said $1,260, the contract price for the construction of said irrigating plant, and did receive said sum of money from said Ewing, then your verdict should be for the defendants. ’ ’
The first instruction was properly refused, because it did not correctly place before the jury the issues presented in the ease; there being no requirement on the part of the United States to establish by a preponderance of the evidence that there was a material misrepresentation of fact. In order to recover, it was only necessary for the United States to establish that the balance named in the complaint was due and unaccounted for, and had not been paid to the United States. The defendants had not set up in their pleadings, nor established by their evidence, sufficient facts to place before the jury, as an issue, the materiality or immateriality of the misrepresentations in regard to the $1,260 voucher. It was only incumbent upon the United States to establish the amount of the balance due the government from the defendant Ewing on December 31, 1900, and as a means of establishing the amount of such balance, to show that the voucher for $1,260 that had been credited to Ewing had been recharged against Ewing, upon the finding of the auditing officers that it was “of the character mentioned in section 8, of the act of July 4, 1884, and contained material misrepresentations of fact,” that had been done. The next instruction directed the jury to find for the defendants, if they believed from the evidence in the case that Ewing honestly and faithfully paid to Russell the $1,260, and that, at the time of the payment to Russell, the said sum was due by reason of the fact that Russell had completed his contract according to plans and specifications. The vice of this instruction lay, not only in authorizing the
It is next assigned that the court erred in 'directing a verdict for the plaintiff, on the ground “that the question of material misrepresentation is one of fact to be submitted to the jury. ’ ’ This calls upon us to consider whether there was any evidence in the ease that was entitled to go to the jury.
Even without this plain interpretation of the pleading that definitely disposes of the case, if we consider the evidence offered as having been offered in support of the denial of the fact that the $1,260 voucher was of the character mentioned in section 8, we find nothing that would call for the submission of this case to the jury. Whether or not the defendant Ewing had made restitution to the government is not material in this case, while it might be in a case for conversion or embezzlement. He testified that he paid the $1,260 to Russell and that Russell immediately paid him back $150, which he testified he held as security that Russell would go back to the agency and do other work. He corroborates this by the testimony of Morrison, who states that he saw the check drawn, and saw Ewing and Russell start toward the bank, and that it was an agreement, at the time the check was drawn, that Russell would give back to Ewing, besides the money to be repaid the Indians, $150. Ewing, in the voucher, certified to the department that the work was fully completed according to the contract, as the ground for paying such voucher. If the work was not completed, and he had a right to withhold $150 to insure its completion, his certificate to the government that it was fully completed was a material misrepresentation of fact. If the work was completed according to contract, and his certificate to the department was true, then his own testimony, supported by that of his witness, that he only drew the cheek for $1,260, and paid it to Russell, on the agreement that they should go together to the bank, and that Russell should pay him back $150, in addition to the amount for the payment of the Indians, rendered his certificate that he had paid $1,260, a material misrepresentation of fact, because, if the work was completed according to specifications, as he certified, this payment to Russell, instead of being $1,260, as certified and as the cheek would indicate, was in fact only $1,110, so that, even in this view of the case, the evidence on the part of the defendant sustains, instead of controverts, the finding of the accounting officers, and does not tend to disprove the amount
The judgment of the lower court is affirmed."
KENT, C. J., concurs.
having tried the ease in the court below, and CAMPBELL and NAYE, JJ., having been of counsel, took no part in the determination of this case.