United States v. Fidelity Trust Co.

• Decision Date: 02 February 1903
• Docket Number: 899.
• Citation: 121 F. 766
• Parties: UNITED STATES v. FIDELITY TRUST CO. (WYMAN et al., Interveners).
• Court: U.S. Court of Appeals — Ninth Circuit

121 F. 766

UNITED STATES v. FIDELITY TRUST CO. (WYMAN et al., Interveners).

No. 899.

United States Court of Appeals, Ninth Circuit.

February 2, 1903

Jesse A. Frye and Edward E. Cushman, for plaintiff in error.

George W. Fogg, for defendants in error.

This is an action brought by the United States on the bond of Moses P. Wyman, formerly agent of the Crow Indian Agency, in the state of Montana. In the original complaint it was alleged that on February 4, 1890, the agent was appointed, and that on April 1, 1890, he executed his bond and took his oath of office, and that he held said office until February 28, 1894 that during the time while he held said office there came into his hands directly from the United States $88,672.57 and from sales of property belonging to the United States sold by him, $111,457.84, amounting in all to $200,130.41 which he received for the use of the plaintiff, of which sum he disbursed and accounted for $199,119.91, but did not account for or disburse the balance of $1,010.50, which sum he converted and appropriated to his own use, in breach of his trust and the conditions of his bond; that the plaintiff made demand upon the agent and his bondsmen for said balance; that on October 18, 1898, the said agent died in Pierce county, Wash., and the Fidelity Trust Company was appointed his administrator; that the plaintiff's claim was duly filed with the said administrator for said balance, but was rejected and disallowed. With the complaint the plaintiff in error filed a bill of particulars, setting forth a statement of the account of said agent from April 1, 1890, to February 28, 1894, showing a balance of $157.50 in the agent's favor; but thereafter, in a supplemental account, made on September 26, 1896, charging the agent under his bond with the sum of $1,168.00, upon information purporting to show that in the fall of 1891 he contracted with one David G. Browne for the Indians of said agency to haul 200 tons of hay to Fort Custer for Browne, for which the Indians were to receive $5 per ton, and that for such hauling by the Indians Browne paid the agent for the Indians $1,168, which the agent never paid to the Indians, but appropriated to his own use; upon which, upon a statement of the whole account of said agent made by the Auditor of the Interior Department, Treasury Department, on July 14, 1899, a balance of $1,010.50 was found against him under his bond. The Fidelity Trust Company answered the complaint, and alleged that said agent, before the commencement of the action and during his life-time, satisfied and discharged the plaintiff's alleged claim by payment thereof. The defendants in error, Jessie J. Wyman and Nellie M. Browne, by leave of the court, intervened as the heirs at law of said Moses P. Wyman and also answered the said complaint. They alleged that 'on or before February 28, 1894, the said Moses P. Wyman duly and lawfully paid out and expended all of the said sum of $1,010.50 for account of said plaintiff, as will more fully appear upon the trial for cause. ' Thereafter the interveners moved the court that the plaintiff be required to set forth the terms of the bond, and to declare what the supposed moneys or funds were from which the balance of $1,010.50 was alleged to have been taken and appropriated by the said agent to his own use. The motion was allowed by the court, and thereupon the plaintiff filed an amended complaint setting forth the bond in haec verba, the condition whereof is as follows: 'The condition of the foregoing obligation is such, that, whereas the President of the United States has appointed the said Moses P. Wyman to be agent for the Indians of the Crow Agency in Montana by commission dated February 4, 1890, and said Moses P. Wyman shall, at all times, during his holding and remaining in said office, carefully discharge the duties thereof, and faithfully disburse all public moneys, and honestly account, without fraud or delay, for the same and for all public funds, including funds designated in regulations of the Indian department as miscellaneous receipts, and moneys belonging to the Indians under his charge which shall or may come into his hands, and all other funds received by him by reason of his position as Indian agent, and for all public property placed in his charge, then the above obligation to be void and of no effect; otherwise to remain in full force and virtue. ' The amended complaint alleged, further, that on July 14, 1899, upon a settlement of said agent's account, duly made by the Treasury Department and the Auditor of the Interior Department, it was found and determined by said auditor that there was a balance due the United States from said Indian agent on account of such agency and upon said bond of $1,010.50, and a certificate to that effect was duly made by said auditor. The amended complaint proceeded to allege a demand upon the agent, and set forth the facts of his death, and the appointment of the administrator of his estate, and the due presentation of said claim to said administrator, and its rejection thereof. The Fidelity Trust Company, answering the amended complaint, admitted that on September 12, 1899, the plaintiff filed with said administrator its claim against said estate for $1,010.50, and that the administrator rejected the same, and that on March 8, 1900, the plaintiff again filed with the administrator the said claim, which was again rejected and disallowed. For a further and separate defense, the trust company alleged that before the commencement of the action, and during the lifetime of said Moses P. Wyman, the said Wyman satisfied and discharged the plaintiff's alleged claim by payment thereof. The answer then proceeded to set up the defense that the action was barred by reason of the following facts: That on October 3, 1898, said Moses P. Wyman died, and on January 26, 1899, his will was admitted to probate, and the trust company was duly appointed administrator with the will annexed; that the administrator duly published notice to creditors of said estate, requiring them to present their claims within one year after the date of such notice, the first publication whereof was made on February 2, 1899; that on September 12, 1899, the plaintiff presented to said administrator for allowance its claim for $1,010.50, and the administrator indorsed said claim as rejected, and forthwith notified the plaintiff thereof; that on September 12, 1899, on the disallowance of said claim, the plaintiff presented the same to the superior court of the state of Washington for Pierce county, having jurisdiction of such matters, and the court disallowed the same; that this action was not begun within a period of three months after the rejection of said claim; that thereafter, on March 8, 1900, the plaintiff again presented for allowance the said claim, which claim was on said date duly indorsed as rejected, and the plaintiff was notified thereof; that said presentation on March 8, 1900, was not made within one year after the date of said publication of notice to creditors. To this second defense the plaintiff demurred, on the ground that the facts therein alleged constituted no defense, and the court sustained the demurrer. The interveners also answered the amended complaint, admitting the execution of the bond, but denying that the said Moses P. Wyman was indebted to the plaintiff in the sum of $1,010.50 or in any sum whatever, and they denied that the said supplemental account of July 14, 1899, as stated in the amended complaint to be between the said agent and the plaintiff, is duly stated as to the item of $1,168, wherein it is supposed that that amount or any amount of money whatever was in the fall of 1891, or at any other time, paid to the said agent in his official capacity by one David G. Browne for or on account of the plaintiff, or for which the agent was in any manner accountable to the plaintiff. The answer proceeds to allege that at the expiration of the term of office of said agent the United States was indebted to him in the sum of $157.50; that the account of said agent so stood until July 14, 1899, when the Interior Department received information that said agent had in 1891...