25 W. Va. 266 | W. Va. | 1884
When the declaration, although it contains but a single count, assigns several broaches, as was done in this case? it is proper to demur to the entire declaration and to each assignment of breaches; for, if the demurrer is merely to the declaration and it contains matter sufficient to maintain the action, the demurrer must bo overruled, even when the breaches assigned are defective or insufficient, and this will be so notwithstanding the general demurrer states as special causes therefor such defects and insufficiencies of the breaches assigned. Henderson v. Stringer, 6 Grat. 130; Wright v. Michie, Id. 354.
"Whether or not the circuit court erred in overruling the general demurrer will necessarily depend entirely upon whether the general or any of the special assignments of breaches are sufficient. If any one of these is well assigned, that would show a foi’feiture of the bond and the right to maintain this action. It will, therefore, be more convenient to notice first the demurrers to the several assignments of breaches of the condition of the bond.
Several objections are alleged to the general assignment. It may be stated as the general rule, especially in this State, as inherited from the State oí Virginia, that the breaches will bo sufficiently assigned by negativing the words of the condition of the bond sued on. — Branch v. Randolph, 5 Call 546; Craighill v. Page, 2 H. & M. 446; Hughes v. Smith, 5 Johns. 173; People v. Brush, 6 Wend. 456; 1 Chitty Pl. 612; 2 Sawnd. 181; Martyn v. Cline, 83 Eng. C. L R. 681.
If the breach is assigned in words equivalent to those in the covenant or condition it will be sufficient. — Smith v. Lloyd, 16 Grat. 295; 3 Rob. Pr. 596.
The reason of the rule and also of the exceptions to it, is answered by doing that which is necessary to give the defendants reasonable notice of the complaint alleged against them. Where the breach consists of a single act or a series of acts of the same nature, a general assignment in the words ot the condition is sufficient. But where the contract or bond provides for the doing of divers acts of various kinds and at different times, any one of which would constitute a breach, a general assignment may or may not give sufficient notice to the defendants, and whenever the latter is the case, the common law rules of pleading require special assignments such as will apprise the defendants of the plaintiff’s demand.
I have thus stated what I understand to be the general rule and its modifications; still, it seems to me, that our statute dispenses with any necessity for resorting to any other than a general assignment of breaches. Itprovides that, “In any action or motion, the court may order a statement to be filed of the particulars of the claim, or of the ground of defence; and if a party fail to comply with such order, may, when the case is tried or heard, exclude evidence of any matter not described in the notice, declaration or other pleading of such party so plainly as to give the adverse party notice of its character.” — Section 46 chapter 130 Code, p. 625; and section 46, chapter 160 Acts 1882 p. 550.
Under this statute, the notice, required by the assignment of special breaches at common law, may be given by the filing of a statement of the particulars of the plaintiff’s claim;
In actions on policies of insurance the legislature, by chapter 66, Acts of 1877, extended the provisions-of this statute with the evident purpose of avoiding the difficulties above indicated. And as such actions are very similar to those to which the present action belongs, the rules applicable to the one class bear directly on those in the other. See on this subject, as to the proper interpretation of the said act of 1877, as well as the statute above quoted, the opinion of this Court in Cappellar v. Ins. Co., 21 W. Va. 576.
In that case the Court, in speaking of section 4 of chapter 126 of Code, which is of the same character as the Act of 1877 and section 46 of chapter 130, just mentioned, says, the bill of particulars or set-off with the plea, “if defective, could be taken advantage of by the opposite side not by demurrer, but only by moving to exclude the evidence from the jury which might be offered to sustain such imperfect bill of particulars or account, and that such bill of particulars or account constituted no part of the pleadings in the case.” — 21 W. Va. 593, Choen v. Guthrie, 15 Id. 113; Abell v. Ins. Co., 18 Id. 412; Smith v. Townsend, 21 Id. 486.
In the case before us the record shows that the defendants availed themselves of said statute, and on their motion the court required the plaintiff to file a more particular statement of its claims which it did, and no motion was made to exclude evidence on the trial because the defendants were surprised or not sufficiently informed by the pleadings of the character of the plaintiff’s demand.
But it is claimed that the demurrer to the general assignment should have been sustained, because it avers that the term of the defendant Black, which was current at the time of the execution of his'bond, continued until September 14, 1875. The claim is that the term of office of Black expired two years after February 1, 1873, the date of the election of
By the Act of March 3, 1870, amending the charter of the city of Wheeling, it is provided: “That the mayor, city clerk,” &c., * * and “all other officers deemed necessary by the city council, shall be elected by the council for the term of two years.” — Section 2, chapter 101, Acts 1870, page 106.
The declaration, as we have seen, avers that the term of office of the defendant, Black, was to continue “until his successor should be elected and qualified.” Assuming, then, that the question must be determined alone by the true construction of this statute, did the term of Black expire two years after the election of the officer whose unexpired term lie was elected to fill, or did it continue until his successor was elected and qualified ?
Judge Billon in his work on municipal corporations, says:
“When, in the charter or organic law of a corporation, there is an express or implied restriction upon the time of holding office, as that the officers shall be annually elected on a particular day, and that they shall hold from one charter election day till the next,-or that they shall be elected for the year ensuing only, in such case they cannot hold over beyond the next election day or the end of the year. But when, by the constitution of the corporation, the officers are elected for a term, and until their successors are elected and qualified, or when they are elected ‘for the year ensuing/ and the.charter or organic law contains no restrictive clause, the officers may continue to hold and exercise their offices, after the expiration of the year, until they are superseded by the election of other persons in their places.” — 1 Bill, on Mun. Corp. section 220 (159).
In support of these views the author cites in addition to a number of English cases, decisions from the States of Indi
The cases on the subject are fully reviewed in Bethany v. Sperry, 10 Conn. 200, and in Stratton v. Outton, 28 Cal. 44. In the former case the court says: “It is a well settled principle that an annual officer continues until superseded by the appointment of another in his place,” and that this principle applies to officers of both public and private corporations unless there be some restrictive provisions in the statute creating them.
I have been unable to find any decision directly in conflict with the rule as above stated by Judge Billon, but on the contrary I find the ruléis fully sustained by the great weight of the authorities and it must, therefore, be regarded as the settled law.
Neither the statutes nor the ordinances in relation to the city of Wheeling have any restrictive words as to the terms of the office of collector, but on the contrary, I think the reasonable construction of the ordinances of the city referred to in the declafaction continues the term of the iucumbent until his -successor is elected and qualified. But having decided that said officer held over under the general law it is unnecessary to consider said ordinances further than to state that they neither by express words nor by implication restrict the powers of the city collector to hold over after the expiration of the term of two years. I am, therefore, of opinion that the defendant Black continued legally in office until September 14, 1875> and that the declaration properly so averred.
It follows necessarily that Black,-being thus collector tie jure of the city until his successor was elected and qualified, his sureties are bound to the same extent for his default while thus in office after the end of the two years from the date of the election of his predecessor that they are for his default during said two years. — State v. Wells, 8 Nev. 105; People v. Aikenhead, 5 Cal. 106; Brandt on Sur. and Guar. §§ 458-59.
It is also objected, that one of the defaults alleged is the failure of Black to “pay into the treasury of said city, at the time or times which were prescribed by the council of said city, all taxes,” &c., when in fact the office of treasurer
It is also objected, that this assignment does not aver when the taxes for 1874 were levied, or that any time or times were prescribed for their payment, or who was entitled to receive the same. If there were any force in these objections they could not bo taken advantage of on demurrer for the reason that, if any one of the acts complained of would constitute a breach of the bond, the demurrer to the assignment generally would have to he overruled. — Henderson v. Stinger, 6 Grat. 130.
Having noticed, as I think, all the objections made to the general assignment ot breaches and findiug none of them well taken, it follows that the demurrer to said assignment as well as the general demurrer to the dealaration was properly overruled.
The special assignments of breaches, being merely, as we have seen, in the nature of a bill of particulars to give a more definite notice to the defendants of the character of the plaintiff’s claim than can generally be given in the general assignment, no such special assignment can be held bad on demurrer if it contains any single averment constituting a breach of the condition of the bond, although it may contain other matters which are irrelevant or which do not constitute such breach. The proper mode of reaching such irrelevant matter is to move to have it stricken out or to object to the introduction of evidence ottered to prove it. A demurrer to the whole assignment, even if it assigns such irrelevant matter as cause therefor, must be overruled if it avers other matter constituting a breach of the condition of the bond.— Wright v. Michic, 6 Grat. 354.
This general rule disposes of the several demurrers to the special assignments of breaches contained in the declaration, and each of said demurrers was properly overruled, because the objections made in each instance relate to only part of the matters alleged as breaches and not to the whole of any
A subpoena duces tecum was awarded by the court requiring the defendant Black to produce a certain “cash book” kept by him in his office. The plaintiff founded its application for this subpoena on the affidavit of members of a committee of the city council which had investigated the conduct and accounts of Black as collector of the city. It is insisted that said affidavit was insufficient, because it was not made by a party to the action as required by the statute. Section 43, .chapter 160, Acts 1882.
The plaintiff being a corporation could -only act by its officers and agents. The affidavit, having been made in this case by members of the city council who had peculiar means of knowing the importance of said cash book as evidence for the plaintiff, was within the spirit if not within the very letter of the statute, and was sufficient. Trenton Banke v. Haverstick, 11 N. J. 171.
It is assigned as error that the court overruled the motion of the defendants for a change of venue. The record shows that this action was tried in September, 1883, and that the affidavits hied in support of this motion were made, some of them between December, 1879, and February, 1880, and others in November, 1882, and none of them after the latter date. These affidavits are made for the most part by residents of the city of Wheeling, and state that on account of the actions of Black as collector of the city there has been considerable prejudice among the people against him, and from their knowledge of the hostility and ill-feeling towards him, the affiants believe that such a state of public sentiment has resulted that a fair and impartial jury could not be obtained for the trial of this action in said city. In opposition to this motion the plaintiff filed the affidavits of a large number of residents, both of the city and of the county outside of the city, showing that in the opinion of the affiants a jury from the country districts of the county could be obtained uot only without prejudice but without knowledge of the matters in controversy in this action. The court did summon a jury from the districts of the county outside of the city, and the
An application for a change of venue should be made at the earliest opportunity. Railway Company v. Mitchell, 74 Ill. 394; Dean v. White, 5 Iowa 266; Cook v. Garza, 9 Tex. 358. In this case the defendants permitted four terms to pass after the issues were made up before they made their motion. Under the circumstances this was too late.
The preliminary motious and objections to the pleadings were passed upon and determined by one of the judges of the circuit court of Ohio county, but the action was ultimately tried by ajudge of another circuit. It was admitted that both of the judges of the circuit court of Ohio county were citizens and tax-payers of the city of AVheeling. The defendants objected to either of said last named judges passing upon any matter in the case on theground that they were interested iu the result as such citizens and tax-payers. This objection was overruled and that is now asssigned as error. Our statute provides:
“No judge of any court, and no sheriff or other officer of a court, shall be disqualified from performing his official duties with respect to any cause by reason of the fact that he is a citizen and'tax-payer oí a county, district, school district, or municipal corporation which is interested in, ora party to such cause.” — Section 1 chapter 62; Acts 1881.
That the legislature had the right to enact this statute is well settled — The Mayor v. Long, 31 Mo. 369; City Council v. Pepper, 1 Rich. L. 364; 1 Bill, on Mun. Corp. section 431 (360); Cooley on Const. Lim. 412.
The defendants excepted to the admission of the bond sued on in evidence because the name of one of the obligors who signed it was interlined in the body of it. There is nothing in this objection. The obligor was bound by the bond whether his name appeared in the body of it or not. If, therefore, it had been shown that the interliniation had beeu made after
The defendants moved the court, to exclude an ordinance of the city offered in evidence on the ground that the pleadings did not notice an amendment thereto. It is a sufficient reply to this point to reier to the fact, that this action was brought in the municipal court of Wheeling and that said court must take judicial notice of the ordinances of the city whether they are pleaded or not. — 1 Dill, on Mun. Oorp. section 413 (346). But the ordinance of which this amendment was a part, having been pleaded, the amendment itself was sufficiently pleaded, because "it was part and parcel of the ordinance pleaded.
The objections to the admission in evidence of the minutes of the proceedings of the city council and of the “cash-book” kept in the office of the defendant Black, were properly overruled. — Cowley v. The People, 95 Ill. 262; Baker v. Preston, Gilmer 235; Brandt on Surety and Guar., section 519; Supervisors v. Dunn, 27 Grat. 608.
The plaintiffs bill of particulars contains an item of $2,000.00 as the “amount collected by Black from tax-payers as interest on taxes and water-rents.” The defendants moved to exclude evidence offered to prove this item. It is now insisted that the interest column of the cash-book, being as alleged the only evidence offered to support this item, should have been excluded, because it did not appear therefrom that the interest charged therein was collected on taxes upon which Black had the legal right to collect them. I am not satisfied that this question is here properly .presented by the record, but, as it arises in another form in the record, it may-as well be considered now. • The position of the defendants is, as I understand it, that, if the defendant Black collected interest from tax-payers of the city on taxes (such as water-rents and school taxes) which the law and ordinances of the city did not authorize him to collect, he is not liable to the city for such interest, and even if he is liable his sureties are not.
The forty-second section of the charter of the city (Acts of 1836) provides that all taxes assessed on real estate for the benefit of the city shall bear interest at ton per cent, per annum
“ In an action upon the official bond of a county treasurer for taxes unaccounted for, the fact ot the illegality of the assessment and collection of said taxes is no defence.” — Mahaska v. Ingalls, 14 Iowa 170.
The treasurer of a town and his sureties were held liable for taxes which had been collected by him, though such taxes had been improperly assessed and collected. Bullwinkle v. Guttenberg, 17 Wis. 601.
Taxes collected from tax-payers by a collector of a town cannot be retained by him on the ground that said taxes were not legal. Loans v. Trenton, 4 Zabr. 764; Thompson v. Stickney, 6 Ala. 579; Walters v. State, 1 Gill 302.
In Lucas v. Locke, 11 W. Va. 81, 91, this Court said: “ To hold a deputy and his sureties liable to the sheriff on his bond, it is not necessary that the deputy is acting under color of some writ, but if he'is acting under color of his office, and professing so to act and inducing others interested to believe he is acting colore officii, he and his sureties will be bound for such acts.”
It is notpretendedinthepresentcase, that the intereston the taxes in question was not collected by Black under color or pretense of his office, but simply that it was collected without authority of law. It was by virtue of his office that he induced the tax-payers to pay it, and it seems to me, it would be a reproach to the law to permit him to retain this interest against the demand of the city. He made the collection as the officer and agent of the city. He is, therefore, estopped from denying that his act was legal, and he is in no position to raise the question whether the whole amount of interest collected by him was legally collected or not. Brandt on Surety and Guar. 452.
The defendants moved to exclude the evidence of the
But it is asserted that the claims of the plaintiff are inconsistent in regard to the interest. That if he is chargable for the interest which he collected or ought to have collected, from the tax-payers, he cannot also be made liable for the specific interest received by him on the proceeds of taxes from the bank. Of course, if he had accounted for all the interest due on the taxes, he would not also be liable for the specific interest received by him from deposits of the public funds in the bank. But he was liable for the whole interest in the one form or the other and, if he was being charged with and compelled to pay more than what was properly due to the city, the explanation and evidence of that fact should come from him. If he had accounted for or been charged with more interest than he was liable for, he could readily •have shown that fact and thus repelled the ¡mrn.ee facie case made against him by the city in charging him in the two modes of which he now complains.
I believe I have now noticed all the objections to evidence fairly arising in the record and which it is deemed material to notice specifically.
5. “The burden of proof is on the plaintiff to show the failure of Black to pay to the city or for its benefit any sums of money which Black may have received from the Exchange Bank by'way of interest on money deposited in such bank, and in the absence of any such evidence, no recovery can be had in this action by reason of the receipt by Black of any such sums.”
7. “With reference to all acts oí a public officer, such as the collector of the city ol Wheeling, the presumption, in the absence oí proof to the contrary, is that such officer has done all things which the law or the course of business in his office made it proper that he should do. This presumption obtains as well with reference to the payment by him to the persons to whom he should have paid it of any balance which his accounts may have shown to have been in his hands as it does to any other of his acts.”
9. “If the jury believe from the evidence that in August or July, 1875, there was a settlement between the city of Wheeling and George Q. Black with reference to the amounts with which he was chargablo, and which he disbursed as collector of the city of Wheeling for the term of office mentioned in the bond sued on in this action, then such settlement is binding upon the parties unless set aside because of fraud or gross mistake or imposition. The burden of proving such fraud, gross mistake or imposition is upon the plaintiff in the action. If there was omitted from the settlement an item or items which should have entered into it, it is not sufficient for the plaintiff to show the mere fact of such omission. In order successfully to attack the settlement on that ground, the plaintiff must also show that such item or*285 items were fraudulently procured to be omitted, or that they were omitted unintentionally and through mistake, and in the absence of any evidence of the circumstances attending the settlement, the jury cannot inter the existence of sirch fraud or mistake.”
11. “The burden of proof is on the plaintiff to show the breach ot the condition of the bond sued on. Before, therefore, the plaintiff .can recover by reason of the collection by Black ot any sum from the tax-payers as interest on taxes collected, the plaintiff must also prove the failure of 'Black to account for or pay to the city or for its benefit such sums of interest, and if the jury believe that no sufficient evidence of such failure has been introduced, the plaintiff cannot recover anything by reason of the collection by Black of such interest.
The fifth and eleventh of these instructions assume that Black may have received interest from the tax-payers in the one case, and from the bank in the other, and that it was his duty to pay it to the city, but they place the burden upon the city to prove that he had not accounted for or paid over said interest. In Pate v. Spotts, 6 Munf. 394, an action of debt on a bond with collateral condition for the making of a deed, the plea, like that in the present action, was conditions performed, it was held that proof of a demand for the deed by the plaintiff was not necessary. By the terms of the bond the performance of the condition is required to make the bond void. The defendants by their plea assumed the burden of showing such pei’formance. This would seem to be the logical conclusion both from the condition and the plea.
It is claimed, however, by the defendants, that their plea was simply a traverse of that part of the declaration which averred the non-performance of the condition and that because the declaration would have been bad if it had not made such averment the burden was on the plaintiff to prove the non-performance which he affirmed. While it is asserted that, except Nicholas v. Fletcher, 1 Wash. 330, the books fail to show any suggestion that in such case the burden is not on the plaintiff, no authority is furnished to show that the burden is on the- plaintiff. The fact that such averment is necessary in the declaration, adds nothing to the argument. The
But, even if this view could be questioned, both of said instructions were properly refused, because they each assume that there was no evidence tending to prove Black’s failure to pay. In the fifth the words used are, “ in the absence of any such evidence,” that is, in the absence of any evidence that he failed to pay over said interest, although it had been proven that he had received it for the use of the city. The jury had the right to infer from all the evidence in the case that ho had failed to pay over said interest although there may have been no direct evidence to that effect. There was evidence from which the jury could properly find that there had been a forfeiture ot the bond. It would, therefore, have been error to have told them that it was necessary by direct evidence to prove each specific act constituting the breaches.
The eleventh uses the words, “ if the jury believe that no sufficient evidence of such failure has been introduced.” This is objectionable for the further reason that it invades the province of the jury and tends to mislead them. The sufficiency or insufficiency of the evidence is purely a matter for the jury, and when the court tells them that the evidence must bo sufficient, the inference is that it must be such as the court would regard as sufficient; for unless it means this, the instruction amounts to nothing, and the refusal of it would not prejudice the defendant. If it simply means that the jury are to be the judges of the evidence and they can find for the plaintiff, on whatever they may deem sufficient evidence, then the words used mean only that the jury are the judges of the evidence and amounts to no instruction at all. Such instructions as these are not allowed in this State State v. Thompson, 21 W. Va. 741; State v. Heaton, 28 W. Va. 793.
The seventh instruction is amenable to both the objections we have just been considering. Under the special facts disclosed by the record it places the burden of proof where it does not belong and it assumes that there was no proof, that
The ninth instruction like the others, except in a more objectionable form, uses the words “in the absence of any evidence of the circumstances attending the settlement, the jury cannot infer the existence of such fraud or mistake.” There may have been evidence other than of the circumstances, &c., from- which the jury might have found such fraud or mistake. It was improper to separate one part of the case from other parts and then tell the jury what they may or may not infer from such part. — Storrs v. Fetch, 24 W. Va. 606; Washington v. B. & O. R. R. Co., 17 Id. 215.
But aside from this view this instruction was properly rejected, there was proof in the record tending to show that the omission referred to in the settlement mentioned was not the result of compromise or a release in favor of Black, but a settlement based on his statement of his accounts which failed to give facts which it was his duty to disclose. These facts having been shown the burden was on him and not on the plaintiff to satisfy the jury that such settlement was of a character which concluded the plaintiff against the items sought to be now recovered.
The following instruction which the court gave the jury at the instance of the defendants was all they were entitled to from the evidence in this case:
“ If the jury believe that in July or August, 1875, George Q. Black rendered an account to the city of 'Wheeling of his collections and disbursements as collector for the unexpired term mentioned in the bond sued on, and that such account was approved by the said city, then the burden of proof is on the plaintiff' to show errors in the account so approved. Prima- facie such account is to be taken as correct.”
I am of opinion, therefore, after the most careful and laborious consideration, that there is no error in the judgment of the circuit court, and thatthe same must be affirmed.
Affirmed.