School District No. 1 v. Dreutzer

51 Wis. 153 | Wis. | 1881

The following opinion was filed September 21, 1880:

Oe/ioN, J.

This suit is brought against William K. Dresser and bis sureties, upon an additional bond given by'William Iv. Dresser as treasurer of school district No. 1 of the town of Sturgeon Bay. The several objections of the appellants to the recovery will be disposed of in their order.

1. The respondent is not interested in the question whether William K. Dresser committed a fraud on his sureties in obtaining their signatures to the bond upon the condition that he would procure one Daniels to sign it also.

2. The execution, delivery and approval of the bond are alleged in the complaint, and not denied in the answer.

3. The liability of the sureties upon the original bond for the amount here claimed may be admitted, and yet the sureties on this bond, as an additional one, be liable also; and the suit, finding and judgment on the original bond are entirely irrelevant and immaterial to this case, because not pleaded or in evidence.

4. The amount of moneys in the hands of William K. Dresser as such treasurer, at the time of the execution of this additional bond, was shown by his report in evidence, and it was incumbent upon him and his sureties to account for its application or expenditure according to law. No such accounting was made, and both the referee and the circuit court were left to ascertain the amount of the defalcation or deficit as best they could, from rather uncertain evidence. The learned counsel of the appellants virtually admits, in his brief, that from the evidence such deficit might properly be computed at the sum of about $400, and the learned counsel of the respondent claims that from the evidence at least three several computations of the amount might be made, one of them the amount of the recovery, and the other two much larger amounts; and the computation made by the courtis much less than that reported by the referee. Under such circumstances this court would not be justified in disturbing the finding of the court unless it appeared to be clearly erroneous, and it does not so appear.

5. Interest was properly allowed on tbe amount of tbe moneys found to be due. Such amount, being ascertainable by computation, could scarcely be called unliquidated; but, if it could be, the rule that interest is not allowable on an un-liquidated account for goods or services, is not applicable to this case. Marsh v. Fraser, 37 Wis., 149.

By the Gov/rt.— Tbe judgment of tbe circuit court is affirmed, with costs.

A motion for a rehearing was denied February 8, 1881.