City of Lowell v. Massachusetts Bonding & Ins. Co.
| Decision Date | 26 October 1939 |
| Citation | 304 Mass. 153,23 N.E.2d 91 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | CITY OF LOWELL v. MASSACHUSETTS BONDING & INS. CO. et al. |
OPINION TEXT STARTS HERE
Report from Superior Court, Middlesex County; N. P. Brown, Judge.
Action by the City of Lowell against the Massachusetts Bonding & Insurance Company and another on an official bond. On plaintiff's motion, the judge of the superior court struck from defendants' answer everything except a general denial on the ground that the allegations struck out were as a matter of law irrelevant and immaterial and reported the case.
Affirmed.W. J. White, Jr., City Sol., of Lowell, for plaintiff.
J. C. Reilly and J. W. Flood, both of Boston, for defendant.
On February 8, 1934, Charles R. Flood was chosen city treasurer and collector of taxes of Lowell under its Plan B charter (G.L.[Ter.Ed.] c. 43, § 56 et seq.), which amended the earlier charter. St.1921, c. 383. Gilliatt v. Quincy, 292 Mass. 222, 197 N.E. 877. Such an officer is bound to give bond with a surety company as surety ‘for the faithful performance of his duties in a form approved by the commissioner’ of corporations and taxation. G.L. (Ter.Ed.) c. 60, § 13; St.1937, c. 143, § 5. McGah v. Quigley, Mass., 22 N.E.2d 192. On February 8, 1935, Flood gave a bond, with the corporate defendant as surety, in the penal sum of $72,500, conditioned ‘that if the said Principal [i. e. Flood] shall faithfully perform all the duties of his said office, as required by law, during the period of twelve months from the date hereof or until he is relieved from office by the qualification of a successor or files a subsequent annual bond, then this obligation shall be void, otherwise it shall remain in full force and effect.’
By G.L.(Ter.Ed.) c. 41, § 52, ‘All accounts rendered to or kept in the departments of any city shall be subject to the inspection of the city auditor or officer having similar duties,’ who may require an oath to the accuracy of any account, and may disallow any claim as fraudulent, unlawful or excessive; and the treasurer ‘shall not pay any claim or bill so disallowed.’ The same section requires that ‘the auditor or officer having similar duties in cities * * * shall approve the payment of all bills or pay rolls of all departments before they are paid by the treasurer.’ By section 41 the treasurer is forbidden to pay any salary or compensation unless the pay roll or account shall be sworn to, usually by the head of the department. See Godfrey Coal Co. v. Gray, Mass., 5 N.E.2d 556.
The declaration upon the bond is in two counts. The breach alleged in the first count is the payment of bills and pay rolls not approved by the auditor as required by section 52 and of salaries and compensation to persons in the service or employment of the city not sworn to as required by section 41, to the amount of $61,845.91. The breach alleged in the second count is the failure to account for that amount.
The answers of the principal defendant Flood and the corporate surety began with a general denial. Then followed allegations in substance that ‘if moneys were expended by him [Flood] as the plaintiff alleges or were not accounted for by him as the plaintiff alleges,’ they were paid in good faith to men properly hired, who had done work for the city entitling them to the compensation paid, and were paid out of sufficient unencumbered balances of appropriations; and that the want of approval by the auditor or of oath by the head of the department was a purely technical omission not affecting the substantive right of...
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City of Lowell v. Massachusetts Bonding & Ins. Co.
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