Cnty. of Sac v. Hobbs
| Decision Date | 18 June 1887 |
| Citation | 72 Iowa 69,33 N.W. 368 |
| Parties | COUNTY OF SAC v. HOBBS AND OTHERS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Sac county.
Action on a promissory note which, by its terms, is payable “to the treasurer of Sac county.” It is alleged in the petition that said note was given for the use and benefit of the county. The circuit court sustained a demurrer to one count or division of the answer. It also struck out, on plaintiff's motion, three other counts or divisions, and from these orders defendants appealed.Goldsmith & Hart, for appellants.
W. A. Helsell, for appellee.
The division of the answer demurred to is as follows: “The only and sole consideration received by these defendants for the written instrument sued upon was that defendant W. H. Hobbs, then the outgoing treasurer of plaintiff, at the expiration of his term of office delivered said writing to his successor in office, with the understanding and agreement that no action should be commenced upon his official bond for any breach thereof by reason of his having failed to account for money collected and received by him in his official capacity, and that it should be received and accounted for as further security, and as taking the place of his official bond, which should be released and canceled, and no action brought thereon for the money so collected and received.”
The grounds of the demurrer are, in effect, that the receipt by Hobbs of the moneys of the county, and his failure to pay the same over, which are impliedly admitted in the answer, and the release of his official bond, constitute a consideration for the promise contained in the writing; and the acceptance of the undertaking expressed in the note, in lieu of the official bond of the treasurer, was a matter within the discretion and power of the officers of the county who were charged with the duty of managing its financial affairs. The questions arising, then, on this branch of the case, are (1) whether the promise of the defendants is supported by a consideration; and (2) whether the transaction in which the note was given was lawful.
As to the first question there can be no doubt. Hobbs was a defaulter. He had received into his possession, in his official capacity, the moneys of the county which he had failed to pay over or account for. These facts are not expressly averred in the division of the answer in question, it is true, but the fair inference from its averments is that they were the real facts of the transaction. He was indebted to the county, then, and it could have maintained an action at once for the enforcement of its claim against him. But it forebore to sue, and accepted the promise of the defendants to pay the debt at a future time. Unless some fact existed which had the effect to take the transaction out of the operation of the rules of law applicable to similar transactions between ordinary parties, these facts afford a valid consideration for the agreement. Is such fact shown by the averments of the answer? We think not. The bond of the treasurer is a security to the county for the moneys which may come into his hands, and it ordinarily has an adequate remedy for any defalcation by an action on the bond. But that remedy is not exclusive, and it often happens that the interests of the county are better protected by pursuing some other course.
The board of supervisors are clothed with discretion in the matter, and it is competent for them, after a defalcation has occurred, to take other security than that afforded by the bond, and even to extend the time of payment, if the interest of the county will thereby be better protected. True, such power is not conferred by any express provision of the statute, but it is included in the general power to examine and settle the...
To continue reading
Request your trial