28 Tex. 578 | Tex. | 1866
—The defendant’s demurrer to the plain tiff’s petition should have been sustained. The allegations of the petition manifestly do not show that the plaintiff was either legally or equitably entitled to the money received by the defendant from the comptroller, and there is therefore no legal presumption that it was received for the plaintiff’s use, nor on any implied promise on the part of the defendant to pay him the amount so received.
The money received by the defendant is alleged to have been due from the State for making out the scholastic census of Grayson county. This duty devolved by law upon Slack, the assessor and collector,, and not upon the plaintiff. If the duty were in fact performed by the plaintiff', his acts as a deputy inure to the benefit of his principal, and compensation for the service would have been due from the State to him, and not to the plaintiff. The law fixed the compensation to which the assessor was entitled for the discharge of the duty imposed upon him. But the recompense to be made to Ms deputy, by whose aid he may have performed such duty, was a matter of contract between themselves. If, by agreement with the assessor, the plaintiff was to have received the amount to be paid by the State for maMng out the census as a compensation for his services in discharging the duty, this fact must have been averred before he could set up any claim to the money received by the defendant in Ms own name.
The petition is also defective in failing to aver a complete performance of the duty imposed upon the assessor, in respect to the maMng out and returning of the scholastic census. In fact, the allegations of the petition negative
If the list were made and deposited in the office of the clerk of the county court within due time, unless it were also reported to the treasurer, the assessor could have demanded no compensation from the State for the labor performed by him. And in such case it is made the duty of the county court to appoint some suitable person to perform the duty which the assessor had neglected to discharge. The probable inference, from the allegations of the petition, is,' that this was the fact in the present ease. If so, and the only service which was rendered by the defendant was to transmit to the capital the list which had been deposited by the plaintiff in the office of the clerk of the county court, the comptroller might probably have declined to pay him for this comparatively trivial service the full amount of compensation intended by the .law as a remuneration for making out and returning the census. But if this is conceded, it in no way affects the plaintiff. He cannot complain if the defendant has received more than the State should have paid him. And even if the defendant was appointed to perform the entire labor in making the scholastic census required of the assessor, and in doing so availed himself of labor performed by the plaintiff, and thereby either expressly or impliedly became bound to pay the plaintiff the - reasonable value of such labor, this action cannot be treated as a suit for its recovery, On the facts presented in the petition, the plaintiff seeks to recover from the defendant money to which, if
The judgment is reversed, and the cause
Remanded.