City of Lowell v. Stiles

• Decision Date: 01 March 1919
• Citation: 122 N.E. 412,232 Mass. 341
• Parties: CITY OF LOWELL v. STILES et al.; CITY OF LOWELL v. AMERICAN SURETY CO. OF NEW YORK; CITY OF LOWELL v. NATIONAL SURETY CO.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

232 Mass. 341

122 N.E. 412

CITY OF LOWELL

v.STILES et al.;

CITY OF LOWELL

v.AMERICAN SURETY CO. OF NEW YORK;

CITY OF LOWELL

v.NATIONAL SURETY CO.

Supreme Judicial Court of Massachusetts, Middlesex.

March 1, 1919.

Report from Superior Court, Middlesex County; Marcus Morton, Judge.

Actions of contract by the City of Lowell against Andrew G. Stiles and others, and the American Surety Company of New York, and the National Surety Company. On report without decision to the Supreme Judicial Court. Judgment ordered for defendant in each case.Wm. D. Regan, City Sol., of Lowell, for plaintiff.

Qua, Howard & Rogers, of Lowell, for defendants.

BRALEY, J.

The defendant Stiles hereinafter after referred to as the defendant, having been duly elected treasurer and collector of taxes for the year 1902, and for the years 1904 to 1916, gave in each year a bond to the city for the faithful performance of his duties, the material condition of which required him well and faithfully to perform and discharge the duties of said offices during the term for which he had been elected. We assume that prior to the enactment of St. 1911, c. 645, which is the city charter, the respective bonds were given as required by Rev. Laws, c. 25, § 72, incorporated by reference and made part of Rev. Laws, c. 26, § 2. But after the charter became operative, subsequent bonds were given under St. 1911, c. 645, § 46, which is them same as Rev. Laws, c. 25, § 72. The defendant as treasurer during the entire period became by force of the statute the depositary of the moneys of the city which he held as its property and exclusively for its use. Railroad National Bank v. Lowell, 109 Mass. 214, 216. It is therefore plain that there has been no breach of the bonds unless in the faithful performance of his duties he failed to account for what he received. The plaintiff does not contend that he was appropriated funds of the city to his own use, but the breach relied on is that he failed ‘to determine and ascertain the amount due as interest from money deposited by him in a banking institution, and failure to collect the same.’ The judge found that the defendant deposited the city's funds in the Lowell Trust Company without making any express agreement as to the amount of interest to be paid on the daily balance of the account, and without any inquiry ‘as to how, or at what rate it was computed, he accepted the amount of interest credited on the account.’ It also appears that during the...