Supervisors of Franklin v. Kirby

25 Wis. 498 | Wis. | 1870

Paiwe, «7.

This is an action brought against the town treasurer upon Ms official bond. The complaint was demurred to, for the reason, among others, that it did not state facts sufficient to constitute a cause of action. This objection seems to me well taken. There are not enough facts stated to show that the treasurer is in default. After showing that money came into Ms hands as treasurer, the only way in which any breach of. the bond is attempted to be shown is by alleging, generally, that he “had not accounted for or paid over” all the money he received, “as required by law,” though often requested. This form of allegation is varied by admitting that he had accounted for and paid over a certain sum,- and alleging that there was a balance “unaccounted for and not paid over as required by law.” '

It does not appear, from any thing alleged, that the reason why the treasurer had not accounted for and paid oyer the balance in Ms hands was not because a state.of facts had not yet occurred upon which he was .required by law to account for or pay it oyer. It does not appear that any successor has been elected, or that the defendant is not still the treasurer of the town, and entitled to hold the balance as such. It does not appear that any person authorized to demand and receive the money from him has made any demand, or that any order has been drawn upon him, which-he has refused to pay. And I think it would be stretching the liberality of the code beyond all reasonable limits, to say that the general allegations that he had not accounted for or paid over all the money he had received, as required by law, though often requested, sufficiently* assert the existence of the specific facts necessary to be supplied, in order to show any breach of official duty. These general statements do not necessarily or naturally import the existence of such facts. True, it may be said that unless these facts existed, the general statements are wholly insufficient and useless. But it would hardly do to establish it as a rule of pleading, that because a statement of certain facts is insufficient unless other facts, about which nothing is said, also exist, therefore the allegation of the former shall be construed to import the existence of the latter.

The statute requires, it is true, that pleadings shall be liberally construed for the furtherance of justice. But this, means only that they shall be fairly and liberally interpreted, so as to make them say what the pleader intended. It cannot mean, that, after they have been so construed, and it is found that all that is said is insufficient, without other facts, then the court should liberally assume the other facts to be true, upon the ground that the pleader would not have said what he did unless he wished to be understood that the other facts also existed.

The respondent’s counsel attempts to sustain the complaint by dividing the clause of the statute, requiring him to account for and pay over moneys coming to his hands, into two distinct grounds of liability. But this construction cannot prevail. He is required to account merely as preliminary to paying over. The latter is the ■essential thing. And the words “to account for and pay over” are used in the section fixing the condition of the treasurer’s bond, to describe his duty in. respect to paying properly at all times, and to ascertaining and paying over whatever balance may be in his hands whenever called upon lawfully by any person entitled to receive it. So long as there is no default in paying over, it was not the design of that clause to create a distinct ground of action for not. accounting; although, under the general condition of the bond to faithfully discharge the duties of his office, perhaps a sufficient breach of the bond might be shown upon which at least nominal damages could be recovered, by alleging a' failure to keep correct accounts, and exhibit the same with his vouchers to the town board as required by section 88, ch. 15, R. S., or to makp the sw'orn, statements required ■by sections 90 and 92.

Under the old system of practice, it was quite common to declare upon bonds as absolute obligations for the payment of money, without disclosing any condition or assigning any breach. The defendant then had to crave oyer, and, after setting out the condition, would aver performance on his part generally. And then the plaintiff would, in his replication, assign the specific breaches relied on. But it is obvious that no such course can be taken under the present practice. The complaint is required to state all the facts necessary to constitute the cause of action, and no reply is permitted except to a ■ counterclaim. And it follows, therefore, that where the complaint discloses the condition of the bond, it fails to show any cause of action unless it alleges .facts enough to show that there has been a breach, of that condition by the defendant. I think the complaint here fails to show such a breach; and, in addition to the authorities cited by the appellant’ s counsel, the following may be referred to as sustaining that conclusion: Coe v. Rankin, 5 McLean, 354; Collins v. Blackburn, 4 B. Monroe, 252.

By the Court. — The order overruling the demurrer is reversed.

Dixoít, C. J., dissents.