2 Kan. 445 | Kan. | 1864
The plaintiffs in error were sued on the bond of Fuller as County Treasurer, on which the other plaintiffs in error, were sureties. The petition is long and very full, setting out the bond and a settlement with Fuller by the Board of County Commissioners, showing the amount found due-and unpaid.
The answer contains first, a general denial of all the allegations of the petition; second, denying any indebtedness ; and third, a set off of moneys due from the county to defendant Fuller. A demurrer was sustained to the third cause of defense, and no exception was taken to the judgment of the Court on the demurrer.
Of the many points set up in the petition in error and argued before the Court, but three appear from the record.
The first is, that the petition doife not state facts sufficient to constitute a cause of action. As no specific defect was pointed out, we shall content ourselves with expressing the opinion that the petition is sufficient. As it covers eleven pages of legal cap, it is hardly necessary to copy it in order that it may be seen to be good.
The second error claimed is rejecting testimony. The plaintiffs introduced the record of the settlement which contains in full the account made out at the time the settlement was made, and this is all the evidence the record shows. Defendants on their part offered to prove by defendant Fuller that certain items of the account were not correct or just, which the Court would not permit, holding that the settlement had become and was a record, and that the same could not be disproved by parole under the pleadings in the case.
There may be much cause to doubt whether the settlement by being spread upon the record had become such a record that it could not be disproved. On this point no opinion is expressed. But the testimony offered was clearly inadmissible under the pleadings; it supported no issue made in the case.
•The bill of exceptions states that the plaintiffs introduced the' record to maintain the issues on their part. The only issue they could be used to maintain was to show a settlement; and because the settlement contained the items of the account aB presented and made part .of the settlement, it does not follow that without raising any issue as to the correctness of the settlement, the defendant could be allowed to go behind it by his proof. If that eourse could be pursued at all, it could only be 'done on a state of pleadings that made it proper. If the answer had set up as a ground of defense that the settlement made with the Board was incorrect and contained errors, then only would the testimony have been pertinent to the issue made. But this was not done. The petition avers a settlement as the law required. This, the defendants denied, and this was the issue on this point, and the Court properly ruled out the evidence.
The third error alleged is the refusal of the Court to give the following instructions, at the instance of the defendant:
“ That the plaintiffs can not recover on the bond here sued on for those items of amounts charged to the Treasurer of Jackson County prior to the execution of the bond by the defendants.
'' “ That the plaintiffs must prove, in order to recover, that every item of the account accrued after the signing of the bond, and if they have failed to establish that fact, the jury is' bound to exclude the item of amounts.”
These the Court refused, but gave the following:
“That if the jury believe from the evidence that any portion of the indebtedness as charged in the plaintiffs petion went into the hands of the defendant, Albert Puller, as Treasurer of Jackson County, before the execution of the bond, and the Treasurer had not made default thereto, then*453 they must exclude those items from the amount so demanded. by the plaintiff in his petition, and that if the jury believe from the evidence that the money so received as former Treasurer came into his hands, as Treasurer, after the execution of the bond, then they must find these items for the plaintiff.”
It appears from the petition that the bond was given on the 21st day of September 1858, and the settlement of the items of account filed as part of the settlement, with the petition, show some items of account charged before that time. The record is silent as to the proof in regard to these items. Certainly the Board of County Commissioners had no right to hold the sureties in the Treasurer’s bond as bound for any moneys received by the Treasurer before the execution of the bond, but it may well have been that the taxes of 1856 and 1851 charged to him, were balance of taxes for those years that properly and legally came into his hands for collection, and for which he was bound to account, and for which also, his sureties were responsible. Erom the smallness of the amounts charged in each year this seems probable. In such a state of proof, which is all the record discloses, the defendants were not entitled .to the instructions asked, nor were they under the issues raised by the pleadings as has been already shown.
If 'these reasons are not sufficient for rejecting the instructions asked, there are two others that will undoubtedly be deemed satisfactory. The first is, that taken literally, neither of them is good law. It can hardly be necessary to repeat • that if the treasurer actually received the items charged after the bond was given, that plaintiff could recover them on the bond even if they happen to be dated prior thereto, and yet defendants asked the Court to say that items charged before the date of the bond could not be recovered without regard to whether they came into his hands before or after the bond was given;
The second clause of the instruction asked and refused requires the plaintiff to prove that every item of account
Judgment affirmed.