County of Bingham v. Woodin

• Decision Date: 06 December 1898
• Citation: 6 Idaho 284,55 P. 662
• Parties: COUNTY OF BINGHAM v. WOODIN
• Court: Idaho Supreme Court

55 P. 662

6 Idaho 284

COUNTY OF BINGHAM v. WOODIN

Supreme Court of Idaho

December 6, 1898

PLEADING.-Where the complaint fails to set forth a material fact essential to the establishment of plaintiff's right to recover, the complaint is bad on general demurrer.

COUNTY ASSESSOR AND TAX COLLECTOR-DEPOSITED ON GENERAL DEPOSIT.-C as assessor and tax collector for the county, paid into the bank of B. & Co. a sum of money collected by him as such official, and subsequently gave to W., the outgoing treasurer of said county, a check for $50,539.03, and the cashier of said bank, without the knowledge or consent of the incoming treasurer, passed a portion of said amount to the credit of the incoming treasurer; held, that this did not constitute "a deposit on general deposit" by such incoming treasurer.

EVIDENCE DOCUMENTARY.-In an action on treasurer's bond the plaintiff was permitted, over the objection of defendants, to introduce the ledger of a banking company and to read in evidence certain entries therefrom, there being no proof as to who made the entries or when they were made, or that the treasurer had any knowledge of or ever consented to such entries. Held, error.

(Syllabus by the court.)

APPEAL from District Court, Bingham County.

Reversed and remanded; costs to appellant.

Alfred A. Fraser and Chalmers & Ryan, for Appellants.

The demurrer to the amended complaint should have been sustained because there is no breach of the bond, or the official duty of said defendant Woodin alleged. (Murback v. State, 34 Ind. 301; Bocard v. State, 79 Ind. 279; State v. Hebel, 72 Ind. 361; State v. Thomas, 17 Mo 503; Supervisors of Franklin v. Kirby, 25 Wis. 498.) The court erred in admitting in evidence page 442 of the general ledger of the bank of C. Bunting & Co. over the objection of defendants, because there is no evidence that it was a book of original entries, in which the party offering it kept his accounts in the regular course of his business. There is no evidence that the entries therein were made by him at the times they purport to have been so made, and contemporaneous with the transactions which they chronicled. (Farrington v. Tucker, 7 Colo. 557; Hooker v. Johnson, 6 Fla. 730; Bower v. Smith, 8 Ga. 74; Kibbe v. Bancroft, 77 Ill. 18; Rice v. Hodge, 26 Kan. 164; Tomlinson v. Borst, 30 Barb. (N. Y.) 42; 2 Am. & Eng. Ency. of Law, 467; Chaffee v. United States, 85 U.S. (18 Wall.) 516.) The court should have excluded said bank-books, as the bank was not a party to this action, and the books of a stranger to the action cannot be admitted in evidence. (Watrous v. Cunningham, 65 Cal. 410, 4 P. 408; Kerns v. McKean, 76 Cal. 87, 18 P. 122; Willis Point Bank v. Bates, 72 Tex. 137, 10 S.W. 348; Barnes v. Simmons, 27 Ill. 512, 81 Am. Dec. 248; Minton v. Underwood Lumber Co., 79 Wis. 646, 48 N.W. 857; Martin-Brown Co. v. Perrill, 77 Tex. 199, 13 S.W. 975.) A judgment which is not supported by the pleading is as fatally defective as one which is not sustained by the evidence. (Bachman v. Sepulveda, 39 Cal. 688.) The plaintiff cannot have a judgment in direct contradiction of the allegations of his complaint. (Von Drachenfels v. Doolittle, 77 Cal. 295, 19 P. 518; Sterling v. Hansen, 1 Cal. 478.) The plaintiff must recover, if at all, upon the cause of action set out in his complaint, and not upon some other which may be developed by the proofs. (Mondran v. Goux, 41 Cal. 151; Miller v. Hallock, 9 Colo. 551, 13 P. 541; Reed v. Norton, 99 Cal. 617, 34 P. 333.)

R. E. McFarland and T. M. Stewart, for Respondent.

Where a check drawn upon a bank is presented to it by the holder for deposit to his credit, and the amount is credited to the holder, the legal effect is precisely the same as though the money were first paid out to him, and then by him deposited in the bank. (Daniel on Negotiable Instruments, 1621; Oddie v. National City Bank, 45 N.Y. 735, 6 Am. Rep. 160.) The giving of a check becomes, at least after presentment, an assignment to the holder of a sufficient amount of the deposit to pay the check, and therefore a definite appropriation of that sum to its payment, binding upon all the parties to the check. (Metropolitan Nat. Bank v. Jones, 187 Ill. 634, 31 Am. St. Rep. 409, 27 N.E. 533; American Exchange Nat. Bank. v. Gregg, 138 Ill. 596, 32 Am. St. Rep. 173, 28 N.E. 839; First Nat. Bank v. Leach, 52 N.Y. 350, 11 Am. Rep. 708.) If, at the time the holder hands in the check, he demands to have it placed to his credit, and is informed that it shall be done, or if he holds any other species of conversation which practically amounts to demanding and receiving a promise of a transfer of credit as equivalent to an actual payment, the effect will be the same as if he had received his money in cash and the bank's indebtedness to him for the amount will be equally fixed and irrevocable. (Morse on Banking, 321; National Bank v. Burkhart, 100 U.S. 686.) Where, under authority from the county treasurer to a tax collector, who is also a bank cashier, to hold and disburse county funds, the latter reports the collection of funds to former and gives him a check therefor, and takes from the treasurer a receipt and the check to be deposited in the cashier's bank and to be paid out on county warrants, the treasurer is chargeable with the money and is estopped to deny its receipt as against the county. (Kempner v. Galveston Co., 76 Tex. 450, 13 S.W. 460; Bush v. Johnson Co., 48 Neb. 1, 58 Am. St. Rep. 673, 66 N.W. 1023, 32 L. R. Ann. 223, 226; Doll v. People, 48 Ill.App. 418.) The great weight of authority holds an officer liable for public moneys lost by bank failure. (State v. Moore, 74 Mo. 413, 41 Am. Rep. 322; Ward v. School Dist., 10 Neb. 293, 35 Am. Rep. 477; Lowry v. Polk Co., 51 Iowa 50, 33 Am. Rep. 114; Omro Sup. v. Kaime, 39 Wis. 468; Inglis v. State, 61 Ind. 212; State v. Croft, 24 Ark. 550; Rose v. Douglass Tp., 52 Kan. 451, 39 Am. St. Rep. 354, 34 P. 1046; Griffin v. Mississippi, 71 Miss. 767, 15 So. 107; Nason v. Directors, 126 Pa. St. 445, 17 A. 616; Bush v. Johnson Co., 48 Neb. 1, 58 Am. St. Rep. 673, 66 N.W. 1023, 32 L. R. Ann. 223.

HUSTON, J. Sullivan, C. J., and Quarles, J., concur.

OPINION

HUSTON, J.

This is an action upon the bond of W. A. Woodin, the principal defendant, and the other defendants as his sureties upon the bond of said Woodin as treasurer of Bingham county. Judgment was rendered by the district court against all of the defendants. Motion for a new trial was made and overruled, and from the judgment and the order overruling motion for new trial this appeal is taken.

The amended complaint sets forth the official character of principal defendant; his election and qualification as such officer; the execution of the bond; and avers that said principal defendant now is the duly elected and qualified treasurer of the said county of Bingham. The complaint then proceeds to set forth the first cause of action, as follows: "That on or about the fourteenth day of January, 1897, Squire G. Crowley had collected, as tax collector of the county of Bingham, and had and sought to pay to the treasurer of said county of Bingham, several sums of money, aggregating more than $ 48,719.03, of moneys belonging to said county of Bingham. That the said defendant William A. Woodin did not on said day receive, and has not since or at all received, the said moneys, and did not demand the same in money, as in law he should have done, but in lieu thereof, and as payment of said moneys, he did receive and accept from said Crowley checks and credits on and in the bank of C. Bunting & Co., bankers, a corporation then doing business in the county of Bingham, aforesaid; which said corporation then was, ever since has been, and now is, insolvent, and unable to pay its liabilities as they matured. That the aforesaid checks and credits were worthless, and did not enable the said defendant Woodin to receive the said moneys, or any part thereof, and the said moneys were lost to the plaintiff by the negligence of the said Woodin, treasurer as aforesaid, in not receiving the said moneys, to the damage of the said plaintiff in the sum of $ 48,719.03. That said damage has not been paid, nor any part thereof. For a second cause of action, plaintiff alleges: That on or about the fourteenth day of January, 1897, the said defendant Woodin, as such treasurer, did receive from Squire G. Crowley moneys belonging to the said county of Bingham in the sum of $ 48,719.03. That said Woodin, as such treasurer, did not safely keep the said moneys, nor any part thereof, but did deposit the same on a general deposit in the bank of C. Bunting & Co., bankers, a corporation then doing business in the said county of Bingham; which said corporation then was, and ever since has been, and now is, insolvent, and unable to pay all its liabilities as they matured. That the said money was never returned to the plaintiff or to said treasurer, but was wholly lost to plaintiff, to its damage in the sum of $ 48,719.03. That said damage has not been paid, nor any part thereof." A copy of the bond is attached to, and made a part of, the complaint. To the amended complaint the defendants interposed a general demurrer to both causes of action stated; and also a special demurrer, on the ground that two causes of action had been improperly joined, and for ambiguity and uncertainty. The demurrers were overruled, and to such ruling exception was taken by defendants. Defendants then filed answer.

We think the demurrer to the first cause of action should have been sustained. It does not appear that any money was paid to the treasurer by Crowley. That Crowley, the assessor and tax collector, "had and sought to pay to the treasurer" certain sums of money, and in furtherance of that...