Brown v. Sneed

• Decision Date: 27 May 1890
• Citation: Brown v. Sneed, 14 S.W. 248, 77 Tex. 471 (Tex. 1890)
• Parties: BROWN v. SNEED <I>et al.</I>
• Court: Texas Supreme Court

Page 248

14 S.W. 248

BROWN v.SNEED et al.

Supreme Court of Texas.

May 27, 1890.

Commissioners' decision. Appeal from district court, Travis county.

Goodrich & Clarkson, for appellant.D. W. Doom, J. S. Hogg, and J. H. Robertson, for appellees.

HOBBY, J.

W. M. Brown brought this suit against S. G. Sneed, Frank Hamilton, and James R. Johnson, by petition filed January 14, 1887, to fix the liability of the said Sneed, and the sureties on his official bond, as chief clerk of the comptroller's office during Brown's term of office as comptroller for an alleged deficit in the tax department in said office, which it is alleged Sneed, as chief clerk, had charge of, and that the said alleged deficit occurred through the fault and misfeasance of the said Sneed.The petition alleged that Brown was comptroller from January 19, 1881, to January 16, 1883; that, among other duties, he was by law authorized and required to receive certain taxes, to issue tax receipts for the same, and to cover said money so receipted into the treasury; and that in conducting said business there has been created by long-established custom in said comptroller's office a "tax department;" that, immediately upon assuming the duties of comptroller, plaintiff appointed defendant Sneed to be chief clerk, and the defendants Hamilton and Johnson became his sureties on his official bond; that at and before the date of Sneed's appointment as chief clerk, and at and before making said bond, it was understood and agreed between plaintiff and defendant Sneed that the duties pertaining to said tax department should be specially assigned to said Sneed, and performed by him or under his direction.It is also averred that plaintiff, as comptroller, did assign the duties of said tax department to said Sneed, and did require him to receive into his care and custody all of the funds accruing in said department; to prepare proper receipts for the signature of plaintiff; to prepare proper deposit warrants; also for plaintiff's signature; to deposit the said funds in the state treasury; and to keep in proper form upon the books of the comptroller's office a clear and accurate record of the entire business relating to said tax department, so that it might certainly and clearly appear from a transcript of said account how much had been received, from what sources received, when received, and how much had been deposited in the treasury, and when and what balance remained in his hands, if any; and to be prepared to pay over such balance when demanded.It is also averred that Sneed's official bond bound him and his sureties for the faithful performance of said duties, as well as all other duties which the said Brown, as comptroller, being present, could lawfully require of him, or, the said Brown being absent, devolved upon him by law.It is also alleged that said Sneed did enter upon his duties on January 19, 1881, and thence continuously to the close of Brown's term, January 16, 1883, assumed and undertook to perform said duties, and did receive the emoluments of said office.It is also alleged that said Sneed, as chief clerk, failed, neglected, and refused to faithfully perform all the duties of his office; that, by virtue of his office, he received into his hands the gross sum of $457,839.47, in discharge of claims owing the state; and that he wholly failed to either account for or to pay over any part of said sum except the sum of $452,160.98, and the further sum of $1,320.74, but still retains in his hands, and refuses to pay over, the sum of $4,356.86, which sum, with interest, is justly due and owing by him; and that this said deficit occurred in the tax department of said comptroller's office, and by and through the neglect, failure, and refusal of the said Sneed to discharge faithfully all of his duties.It is also alleged that plaintiff, Brown, being primarily liable for said deficit, suit was brought against him by the state on his official bond, which resulted in a judgment against him and his sureties for the amount of said alleged deficit, May 24, 1884, which, on appeal, was affirmed, and is now final, subsisting, and unpaid; that execution was issued on said judgment on the ______ day of April, 1887, to Travis county, and returned unsatisfied; that by said judgment the liability for said deficit is primarily fixed upon Brown and his sureties; but that, by reason of the facts alleged, the said Sneed and his sureties are also liable, because the said deficit accrued solely by and through the official misfeasance and neglect of said Sneed, who is ultimately liable for the same; that Sneed is also bound by said judgment; that he had notice of said suit; that it was alleged therein that said deficit occurred in said tax department; that he had opportunity to make defense; that he was present on the trial and testified therein; that said judgment was obtained mainly upon his testimony and disclosures and confessions of official neglect by him made known on said trial; and that he, in writing, admitted the default to be his solely, and undertook and promised to make it good, and save plaintiff from pecuniary loss; which writing is attached as an exhibit.It is also alleged that the true state of the accounts of Ex-Comptroller Brown relating to the said tax department was unknown to intervenor and to its officers charged with the duty of settling the accounts of the state, until on or about the 28th of August, 1883; nor did the state have any means of determining the true state of said accounts; that said Sneed, although in duty bound to keep accounts relating to said tax department, as hereinbefore alleged, wholly failed and neglected so to do; that no statement of the accounts of receipts and deposits made existed in said office at the close of Brown's term, and no balance stood stated on the books of said office against said Brown; that afterwards, to-wit, on the ____ day of April, 1883, a legislative committee examined, as best they could, the mass of books, papers, and vouchers in said office, and reported a balance due by Brown of $1,320.54, and the said Sneed, admitting then and afterwards his duty to pay same, did advance that amount to pay the alleged deficit; and afterwards the accounting officers of the state attempted from the mass of books, papers, memoranda, and vouchers in said office to state the said Brown's account, which required great length of time and care, and, finding discrepancies therein, they called upon said Sneed to explain; and at last, on the ____ day of August, 1883, an account was stated, a copy of which is attached, and which said Sneed admitted to be correct; but it is averred that said account could not be stated from the books of said office, but depended in a great part upon the personal recollections of said Sneed, aided by private memoranda kept by him during his official career, which he then disclosed partially; and, upon the trial before mentioned, he explained that the deficit for which Brown had been sued was made up of the said sum of $1,320.64, a mistake of $1,800, credited to Brown's account, which should have been credited to his predecessor Darden, and one other mistake, the peculiar nature of which he did not explain.It is averred that the state's accounting officers did have, and could have, no knowledge of said facts except upon the admissions of said Sneed; that it is possible that by painful and tedious investigation it might have been determined from disconnected data in said comptroller's office that, beginning with the time during Darden's term when, under the constitution of 1876, taxes were collected at the comptroller's office, and continuously to the close of Brown's term, a deficit existed; but, even in that event, the line dividing said Darden's responsibility from Brown's could not be struck from any data existing in said office, but depended wholly upon the personal recollection and private memoranda of said Sneed; that said Sneed was tax clerk during Darden's administration of said office, which position he continued to hold until the close of Darden's term, and immediately became chief clerk under Brown; that Sneed had in his hands upon Darden's retirement various sums of money theretofore accruing in the tax department aggregating a large sum; that, upon assuming the duties of chief clerk under Brown, said Sneed did not disclose this fact to said Brown, or make any appropriate entry upon the books separating Darden's liability from Brown's and continued to make deposits out of said funds for the credit of Darden as well as for Brown; that through mistake, official neglect, or misfeasance of Sneed the true state of said account was not, and could not be, known until within less than four years.

After the petition of the intervenor was filed, the plaintiff, Brown, amended, not contesting the demand of the state, and declaring his interest to be with the intervenor, and adopting the allegations of intervenor.He also alleged that, reposing full confidence in the ability and integrity of said Sneed, plaintiff did, as comptroller, place in his charge and under his supervision the duties pertaining to the tax department, and Sneed did take charge of and supervise said business, and did each day take into his custody the funds of all kinds received in said tax department, and did indorse his receipt for the same on the book kept for that purpose, and said funds remained in his custody and control until deposited by him in the treasury upon warrants prepared by him and signed by Brown.And plaintiff avers that he did not at any time have in his custody any part of said funds, or interfere with the care and custody exercised by Sneed, or handle in any way any of said funds.Plaintiff also alleges that said deficit is and was the direct result of Sneed's official neglect, and not through any agency of plaintiff, and that the burden of making good the said deficit should ultimately fall on...