Barry v. Screwmen's Benev. Ass'n.

• Decision Date: 21 January 1887
• Citation: 3 S.W. 261
• Court: Texas Supreme Court
• Parties: BARRY and others <I>v.</I> SCREWMEN'S BENEV. ASS'N.

3 S.W. 261

BARRY and othersv.

SCREWMEN'S BENEV. ASS'N.

Supreme Court of Texas.

January 21, 1887,

Appeal from Galveston county.

James B. Stubbs and R. G. Street, for appellants. Finlay & Rose, for appellee.

STAYTON, J.

This action was brought by the appellee against E. A. Smith, and the sureties on his bond, as treasurer of that corporation, to recover the sum of $4,639.42, which it was alleged the treasurer had misapplied. The petition alleges that Smith was elected treasurer on December 24, 1884, and that he qualified by giving the bond sued upon on January 21, 1885, which was conditioned that he should make faithful returns to plaintiff of all funds, papers, stocks, bonds, or other valuable papers or property intrusted to his safe-keeping. It contains the further averment "that, as treasurer of plaintiff association for the year commencing January, 1885, said E. A. Smith received and had intrusted to him by plaintiff divers large sums of money, and paid out divers sums of money for plaintiff, an itemized account of which receipts and disbursements, with the dates of each item, is hereto attached, marked `Exhibit B,' and made a part of this petition, showing a balance due plaintiff by defendants on the twenty-fourth day of July, 1885, in the sum of four thousand and six hundred and thirty-nine 42-100 dollars." The account attached as Exhibit B shows this item: "January 1, 1885, to cash, as per report, $5,142.92." The rest of the account is a statement of the cash received and disbursed by the treasurer from January 3 to July 11, 1885, the latter exceeding the former. There are averments that Smith was removed from office on July 24, 1885; that demand had been made for the sum claimed; that he had failed to pay it; and "that the said E. A. Smith, at and before the twenty-fourth day of July, 1885, being indebted as aforesaid, as treasurer aforesaid, to plaintiff in the sum of four thousand six hundred and thirty-nine 42-100 dollars for money had and held by him as aforesaid, converted all of said sum of money to his own use and benefit." All the sureties filed general demurrers, and two of them filed special exceptions, the substance of which is fairly set out in the first assignment of error, which is as follows: "The court erred in overruling defendants' fourth and sixth exceptions to the plaintiff's original petition, which fourth exception called in question the sufficiency of the petition in failing to allege that the first item of Exhibit B, to-wit, `January 1, 1885, to cash, as per report, $5,412.92,' represented that amount on hand or in the possession of the treasurer at the commencement of these defendants' alleged liability upon said bond, or that said amount was ever paid to said Smith by plaintiff at any time during the period when the said liability attached to defendants; and it does not appear from the petition that said sum was in the hands of the treasurer, subject to plaintiff's draft, on the date of the execution of said bond, and the attaching of defendants' liability thereunder." And the sixth exception was as follows: "Because it appears from the terms of the bond, a copy of which is annexed to the petition, that these defendants are not liable for any funds or other property intrusted to the safe-keeping of said Smith by said association before the execution of the bond sued on; defendants' liability, if any, being only for the faithful returns of such funds or property as might be intrusted to said Smith subsequently to the execution of said bond." These were overruled. There is no direct averment in the petition that Smith was treasurer for the year preceding January 21, 1885, or for any former period; but we are of the opinion that the averments, taken together, show that he was treasurer on January 1, 1885, and that in that character he is alleged to have received, and to have had in his hands on that day, the sum of money mentioned as the first item in the exhibit made a part of the petition.

It is an elementary rule of pleading that a plaintiff must allege such facts as entitle him to the relief which he seeks. The bond, made the foundation of this action, imposes no liability on its makers for any misappropriation of money which may have been made by the treasurer prior to the time it was executed. It can have no retroactive effect. Hetten v. Lane, 43 Tex. 288; U. S. v. Boyd, 15 Pet. 187; Bruce v. U. S., 17 How. 442; Bissell v. Saxton, 66 N. Y. 55. If money belonging to the plaintiff came into the hands of the treasurer, and was in his hands as treasurer when the bond was executed, then his sureties are as much liable for its subsequent misappropriation by him as would they be for the misappropriation of money which came into his hands as treasurer after the bond was executed. If, however, money came into his hands as treasurer before the bond was executed, the sureties...