Inhabitants of Egremont v. Benjamin

125 Mass. 15 | Mass. | 1878

Soule, J.

The sureties on the bond of an officer, which recites that he has been chosen “ for the current year,” with condition merely that he “ shall faithfully collect, account for and pay over all the taxes he shall be legally required to collect, and also faithfully discharge all other legal duties of said offices,” are not liable for any failure of duty which occurred during a term of office previous to that for which the bond is given, nor for any default or misfeasance in any subsequent term for which the principal may be elected. Lexington West Cambridge Railroad v. Elwell, 8 Allen, 371. Amherst Bank v. Root, 2 Met. 522.

If, however, such officer applies moneys, received during the term covered by the bond, to the payment of arrearages of a previous term, and the corporation, municipal or trading, whose servant he is, receives such moneys in good faith, without knowledge of any purpose on his part to defraud the sureties on his bond, such sureties are liable for the deficiency in the funds of the year covered by the bond, which results from such application of the moneys received. And when moneys are paid to the corporation by an officer with whom is an open account, running back into a previous term, and he makes no application of the payment to a particular part of his debt, such payment goes to the extinguishment of the earliest items. Colerain v. Bell, 9 Met. 499. Sandwich v. Fish, 2 Gray, 298. Gwynne v. Burnell, 6 Bing. N. C. 453. Attorney General v. Manderson, 12 Jur. 383.

In the case at bar, it appears that the defendant Benjamin, the treasurer and collector of the town, made a report at the meeting of March 29,1875, showing a balance due from him, as treasurer, to the town, of $797.12, and that the first entry in his account as treasurer, for the year covered by the bond in suit, was a charge to himself of that balance. In the absence of proof to the contrary, it is to be presumed that he had that amount of money on hand, subject to the call of the town, and that no objection exists to the charge going into his account. It is contended, however, that the judge, who tried the case without a jury, ought to have excluded this balance in making up the amount for which execution should be awarded against the sureties on the bond, on the ground that, under the evidence offered, they were entitled to a ruling that, as to this balance, the treasurer had become a defaulter during the previous fiscal year, and had not had the moneys represented by that balance in his hands since their bond was executed. The evidence offered tended to prove that he had not the money in hand, as money set apart for the town, but had mingled it with his own moneys, and had used it and converted it to his own business. It is apparent that the treasurer had not been wont to deposit moneys received by him officially with a bank, to the credit of the town, and to draw, as treasurer, against such deposit, in order to make the payments required of him from time to time, but had simply kept an account between himself and the town, which showed the amount due from him at all times. For that amount he was a debtor merely, bound to pay it over whenever it should be called for in due course of business during his term of office, and, at the expiration of his term, to pay it to his successor. He was not a bailee of the moneys received, but an accountant, bound to pay over an amount equal to what he had received, precisely as a collector of taxes is a debtor and accountant, bound to pay to the treasurer the moneys which he receives. Hancock v. Hazzard, 12 Cush. 112. The liability of the sureties for the amount of the balance due March 29, 1875, is not determined by the manner in which the treasurer had used the moneys represented by that balance, but by the fact that he had used the moneys subsequently received in payment of that balance, under such circumstances that they were, as between him and the town, applicable to the extinguishment of the earnest items of the account between him and the town, according to the doctrine of the cases above cited. The evidence offered its to his previous use of the money received before March 29, 1875, was therefore immaterial, and the rulings asked for, based on that evidence, were properly refused.

It is conceded that the plaintiff is entitled to judgment, and to execution for the amount of the county tax; but the defendants insist that there was no breach as to any other moneys contended for in the suit, because no demand was made on Benjamin before suit was begun. It appears that the term of office for which the bond was given had expired, that a committee was appointed to settle with Benjamin, and made a report to the town, which was accepted, after which Benjamin turned over the tax lists of 1874 and 1875 to his successor, and made a small cash payment. Under these circumstances, no formal demand of payment was necessary. The unpaid balance in the hands of Benjamin was due presently on the expiration of his term of office. It was his duty to pay it over to his successor without formal demand. Moreover, the attempt at settlement through the committee of the town might well be regarded as the equivalent of a formal demand of payment. It is to be remembered that the question now under consideration does not go to the maintenance of the action, nor depend on the pleadings. It is conceded that judgment is to go for the plaintiff for the penalty of the bond. The question is only as to the amount for which execution is to issue. The amount insisted on by the plaintiff was clearly due from Benjamin, and should be included in the execution, unless there is good equitable reason to the contrary. Hatch v. Attleborough, 97 Mass. 533. Such reason we fail to find. Exceptions overruled.