63 Neb. 107 | Neb. | 1901
This is a civil action begun cr' the authority of the town board by the plaintiff, a political subdivision of Adams county, which is governed by the township organization law, against the defendant as road overseer of one of the road districts within the township. The action is founded . on the alleged receipt of moneys from the township treasurer by the defendant for use in repairing and-improving the public highways over which he was overseer, and for his failure to account for such moneys, or the disbursement thereof. A trial to the court and jury resulted in a verdict and judgment in favor of the defendant, and the plaintiff prosecutes error therefrom in order to obtain a reversal of such judgment.
We are met at the threshold of the inquiry with the objection on the part of the defendant that the petition does not state a cause of action, and therefore in no event can plaintiff obtain any relief. If the objection is well taken, it is useless to proceed further in the consideration of the alleged errors relied on to secure a reversal of the judgment rendered below. The objection, as we understand counsel, is that the road district of which the defendant was the supervisor is a political entity, — a municipal corporation, — authorized to sue and to be sued and to conduct its business as such corporation, and that, upon the payment of the money sought to be recovered by the town treasurer to the road supervisor, the road district became vested with the right to the money so paid, and the township thereby lost all interest therein, or right to maintain an action for an accounting showing the expenditure of
The real controversy between the plaintiff town and the defendant road overseer is over the disbursement of the sum of $150 which was received by the overseer from the township treasurer to be used in the improvement of the public highway in the district of which he was the overseer. A report was filed by the defendant, as road overseer, with the town board, which was considered at two or three meetings of the board and then rejected, and this action Avas instituted to recover the Avhole sum received by the defendant. The items of expenditure were of the most general character and gave no very intelligent idea of how the money was applied. Of the $150 received, all but $12 Avas reported as being paid to the defendant himself or to his son, to the latter-$81. The correctness of the account was controverted because $8 per day for man and team was paid to the son, Avhen it is claimed the value of such services did not exceed $2.50 per day, and the items paid by the defendant to himself Avere disputed altogether. The defendant, in the performance of his official duties, was acting as the agent or trustee of the township, and he is and should be held accountable for a faithful discharge of the duties he had undertaken by the acceptance of the trust. It was his duty faithfully to account to the proper officer or officers for all the moneys coming into his hands, the disbursements made, and for what purpose, with sufficient certainty that the correctness of the report- so made might be examined into and determined; and on his failure to do so an action would lie for the money so received and for which he failed to account. It is his duty, under the statute, to make such report; and it is implied that the report shall be sufficiently comprehensive and intelligible
In the account of the defendant to the town board is a claim of $8 for four days warning hands, at $2 per day, and $12 for six days in overseeing work on the roads at $2 per day; total, $20. By section 96, chapter 78, it is provided that in the settlements required to be made by the road overseer with the town board, he shall be allowed the same amount as is allowed overseers in their settlements in counties not under township organization, which sum shall be paid out of any money belonging to his district, and if there be not sufficient money belonging to the district he may be paid out of the township road fund, or for any balance due him he may receive from the town board a certificate which may be received in payment for labor tax for any succeeding year. By referring to section 82, governing settlements - with overseers in counties not under township organization, it is provided that the overseer shall be allowed $2 per day, including the time necessarily spent in notifying the hands, superintending the work on roads and making out his return, but not to exceed the sum of $30 in any one year.
As we construe these sections, before a road overseer is entitled to take and apply to his own use funds in his possession belonging to. the road district, or out .of the township road fund, or before receiving a certificate by which he may have his labor tax applied, he is required to submit to the town or county board his claim for services of the kind specified, and for the amount allowed per day, not exceeding the total sum mentioned in any one year and have the same examined and allowed, whereupon he becomes entitled to compensation for such services by one or more of the methods pointed out by the statute. The defendant in the case at bar seems to have rested his defense on his right to perform the services mentioned, and
It is argued by plaintiff in error that the defendant having admitted the receipt of the money with which he is charged, it was his duty to account for its disbursement in the manner provided by lavv, and the burden was on him in the action to show disbursement of the entire sum received in the manner provided by laAV. This is perhaps stating the rule too broadly. He came by the funds rightly, and for any misappropriation or failure to disburse them in the manner provided by laAV an action would lie, but the burden of proving the cause of action alleged in the petition would not change because of an admission of the receipt of the funds. It Avas his duty to account for the funds so received, and this duty he could be compelled to perform. He was also charged Avith a faithful discharge of the duties he assumed when he accepted the office, and if in making disbursements of the funds received by him for the purpose of improAdng and repairing the public higlrways, he pays more than the services or materials are reasonably Avorth in the market and does not act in good faith regarding the matter, or acts fraudulently or corruptly, the excess payment would be unauthorized, and he would be liable as for misconduct in office. In other Avords, he is held to a faithful and honest conduct of the affairs of his office in the disbursement of funds' coming into his hands, as Avell as in all other respects.
It is also argued that the evidence will not justify a verdict for the defendant AAdiich in effect finds that he has lawfully disbursed the funds coming into his hands, and for this reason the verdict is unsupported by and contrary to the evidence. The defendant was called as a witness on behalf of the plaintiff for the purpose of showing where and when the work had been performed and the material
In the instructions to the jury at the request of the defendant, one was given as follows: “The jury is instructed that a party presenting a witness is bound by the testimony of such witness even though it be unfavorable to his side of the case.” Under this instruction, conceding the defendant’s testimony to be sufficient to support a finding in his favor, the jury could do nothing but find for him. They had no choice in the matter and were not at liberty to weigh and consider all the facts and circumstances of which there was evidence. The plaintiff, declares the instruction, is bound by the testimony of the defendant, although unfavorable to its theory of the.case; that is, the defendant having been called as a witness on behalf of the plaintiff, and having said the money he received was all disbursed as shown by his report, the plaintiff is bound by the statement and precluded from proving its case by other competent evidence. The instruction can not be upheld. It was manifestly prejudicial to the plaintiff, in view of the circumstances under which the evidence was submitted,
Tbe judgment must be reversed and a new trial awarded, which is accordingly done.
Reversed and remanded.