City of Newburyport v. Spear
| Decision Date | 06 January 1910 |
| Parties | CITY OF NEWBURYPORT v. SPEAR. SAME v. FAY. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
OPINION TEXT STARTS HERE
Report from Superior Court, Suffolk County; Jabez Fox, Judge.
Actions by the City of Newburyport against Guy M. Spear and against Wilson W. Fay. Verdicts for plaintiff. Heard on report of the justice of the superior court. Judgment on the verdicts.
Robert G. Dodge and Chas. W. Blood, for plaintiff.
Geo. C. Coit, for defendant Spear.
Edwd. E. Elder, for defendant Fay.
These are two actions, depending upon similar facts, to recover for money had and received by the several defendants to the plaintiff's use. They grow out of the embezzlement of the plaintiff's moneys from time to time by its city treasurer, as it is shown in City of Newburyport v. Fidelity Life Ins. Co., 197 Mass. 596, 84 N. E. 111. The principal difference between the facts of that case and the facts of the present case is that in that case the checks were made payable to the order of the defendant's cashier, while in the present cases they were made payable to the order of James V. Felker, who was the city treasurer, who signed the checks in his official capacity. In all the cases the checks appear on their face to be drawn on the account of the plaintiff city by its official representative, and they were received by the defendant in payment of a personal debt of the treasurer, and afterwards deposited in the defendant's bank account and collected in the usual way. The cases come to us on a report in which it is stated that the facts afterwards recited ‘appear in evidence.’ These facts must be treated as agreed to by both parties, and the judge was justified in making rulings of law upon them accordingly. In each case he directed a verdict for the plaintiff, refusing numerous requests for rulings presented by the defendants. It will not be necessary to consider these requests in detail, if we find that the plaintiff was entitled as matter of law to recover upon the undisputed facts. Each defendant received checks drawn upon the plaintiff's bank account, which were in form payable from this account, were expected to be paid from it, and were in fact paid from it, the defendant receiving the proceeds. As these were taken in payment of a personal debt of the treasurer, the defendant is chargeable for money had and received, under the decision above cited, which fully covers this part of the case. The proper interpretation of the statement that ‘the defendant received the checks, deposited them in his bank account, and they were paid by the banks upon which they were drawn,’ is that the money was collected for the defendant in each case through the bank which received the checks on deposit for that purpose.
The defendants contend that the bank could not legally pay the checks, and that the plaintiff's money in the bank was not diminished by the payment, and the plaintiff was not damaged, as the bank is still accountable for the deposit as if the checkes had not been drawn. This contention rests upon the view that, if the bank could not properly make the payment, the plaintiff could not treat it as having passed the money to the defendants, and cannot maintain an action against them for money had and received. This view is combatted by the plaintiff, which contends that, even if the payment was made by the bank without authority, the plaintiff still may elect to follow the money. In support of this doctrine it cites Van Dyke v. State, 24 Ala. 207;Whitton v. Barringer, 67 Ill. 551, and Bolles' Modern Law of Banking, 614, 615.
We do not find it necessary to pass upon this question, for we are of opinion that, upon the facts before us, it does not appear that the payment by the bank was improperly made. On this point the defendants contend, first, that these checks were made without authority, and should be treated as if the signature of the drawer had been forged. They rely upon an ordinance of the city, providing that ‘no money shall be drawn out of the city treasury except on the written order of the mayor, addressed to the treasurer, and countersigned by the city clerk.’ We do not understand this ordinance as having any reference to the form of the check to be used by the treasurer in drawing money from the bank, but only to the regulation of his conduct in making payments from the treasury, whether by check or otherwise. It is to be remembered that a treasurer is a public officer who has the custody of the moneys of the city and gives a bond with sureties for their security. In the language of Mr. Justice Wells in Railroad Nat. Bank v. City of Lowell, 109 Mass. 214-216: . ...
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