123 Ind. 24 | Ind. | 1890
This was a suit by the appellee, as receiver of the Working Men’s Saving, Loan and Building Association, of Peru, Indiana, against the appellant, on his bond as
At the date of the execution of the bond in suit, the constitution of the association provided that the secretary should keep correct minutes of the proceedings of the association, and of the board of directors; that he should keep accurate accounts with all stockholders, and attest all orders signed by the president legally drawn on the treasurer ; that he should receive all dues for stock and other payments from the members, and pay the same to the treasurer, taking his receipt therefor; that he should have charge of the seal and all the books and papers of the association ; all of which he should deliver to his successor in office.
The complaint alleges that the appellant was duly elected secretary of said association on the 15th day of January, 1880, and duly qualified to serve, as such, during the year 1880; that on the 24th day of January, 1881, he was duly elected as his own successor and duly qualified; that during the year 1880, he had in his care, custody and control a certain promissory note belonging to and the property of said association, dated September 25th, 1879, due on or before September 25th, 1880, payable to the order of the Working Men’s Saving, Loan and Building Association, of Peru, Indiana, for $200, with interest from date at the rate of eight per cent, per annum, without relief from valuation or appraisement laws, with five per cent, attorney’s fees, signed by Eliza J. Trissal and Noah W. Trissal, and secured by mortgage on the following real estate in Miami county, Indiana, to wit: Lots Nos. 55 and 56, in Smith’s second addition to Peru, Indiana, * * * which note is of the value of three hundred and fifteen and dollars; that he wrongfully neglected, failed and refused to pay to the treasurer of said association the
The appellant answered this complaint in nine paragraphs. The court sustained a demurrer to the fourth, fifth, sixth, seventh and ninth paragraphs of the said answer, and this ruling is assigned as error in this court.
The fourth paragraph of the answer admits the possession of the note mentioned in the complaint, and the right of the plaintiff to recover nominal damages, and in avoidance of all claims for damages, except such as are merely nominal, alleges that in the year 1880, while he held the possession of said note, said association furnished no place for the safe keeping of its securities; that appellant occupied a room jointly with one Dukes who was the president of said association, and was and still is a man of large financial means; that with the consent of said Dukes he left said note in the fire-proof safe of the said Dukes, with the other securities of said association; that at the request of the said Dukes, who was the president of said association, and upon his representation that the makers of said note desired to pay the same, at a time when the appellant, by previous arrangement, would be absent from his office, he delivered said note to the said Dukes to receive the money due thereon; that he has never had said note in his possession since he so delivered the same to said Dukes; that the makers of said note now have the possession of the same, but the said Dukes denies that they paid the same to him; that the association, brought suit on said note against the makers thereof in the Miami Circuit Court, after the same was so delivered to the said Dukes, but was defeated in said suit; that no part of said note was ever paid to the appellant.
The sixth paragraph is the same as the fourth, except that it omits the averments that the appellee delivered the same to Dukes, and the defeat of the association in a suit on the note, and avers that the same was taken from the safe without his knowledge or consent, and avers that the same has never been paid.
The seventh avers 1 hat the appellant received no money on the note mentioned in the complaint, and that the same was lost while in his possession as secretary of said association, without any fault or negligence on his part.
The ninth paragraph is substantially the same as the seventh.
The appellant contends that this case falls within the rule announced in the cases of Norwood v. Harness, 98 Ind. 134, State, ex rel., v. Greensdale, 106 Ind. 364, Slauter v. Favorite, 107 Ind. 291, and Naltner v. Dolan, 108 Ind. 500, and that he is liable only for the want of such care as is required of an ordinary trustee or bailee for hire. On the other hand, it is contended by the appellee that the case falls within the rule announced in the.cases of Halbert v. State, ex rel., 22 Ind. 125,and Inglis v. State, ex rel., 61 Ind. 212, and that the appellant is an insurer of the property and money coming into his hand as such secretary.
It is said in some of the cases of the class to which the two last cited belong, that when a public officer receives funds the money belongs to him and that he becomes a debtor to the fund received, and for that reason it is no defence when called upon to account, to say that the money
Nor can we say that the evidence which the appellant might have introduced under these paragraphs could be given in evidence under the eighth paragraph of the answer, as contended by the appellee. The proof under the eighth paragraph would be limited to the specific facts therein averred, while under the seventh and ninth it might have taken a much broader range.
It is also complained in this court that the circuit court erred in overruling a demurrer to the third paragraph of the reply to the eighth paragraph of the answer.
We think this complaint is well founded. The eighth paragraph of the answer avers that the note mentioned in the complaint was lost while the same was under the control of the appellant, as secretary of said association, without any fault or negligence on his part, under the circumstances following : That said association did not designate or provide
To this answer the third paragraph of the reply alleges that the appellant, while acting as secretary of the association, to wit, on the — day of April, 1880, delivered said note to said Dukes for safe keeping and for collection, as the agent of the appellant; that while the same was so in the possession of said Dukes as such agent, to wit, on the — day of April, 1880, the payor thereof Noah W. Trissal, paid the same in
This reply proceeds upon the theory that the appellant is liable for the note in controversy without regard to any question of negligence. A rule that would render him liable under the circumstances disclosed by this answer and the reply thereto, would render personally liable the officers of a bank, administrators and guardians, where they entrust claims for collection to agents or attorneys, however careful they might be in the selection of such agents or attorneys. As we have seen, the rule which holds a public officer as an insurer of the funds in his hands does not apply to officers of a private corporation, like the one before us.
We think the court erred in overruling the demurrer to this reply.
Judgment reversed, with directions to overrule the demurrer to the fourth, sixth, seventh and ninth paragraphs of the answer, and to sustain the demurrer to the third paragraph of the reply.