Draffen v. City of Boonville

• Decision Date: 31 January 1844
• Citation: 8 Mo. 395
• Parties: DRAFFEN ET AL. v. CITY OF BOONVILLE.
• Court: Missouri Supreme Court

8 Mo. 395

DRAFFEN ET AL.

v.CITY OF BOONVILLE.

Supreme Court of Missouri.

January Term, 1844.

APPEAL FROM COOPER CIRCUIT COURT.

ADAMS and LEONARD, for Appellants. 1. The law of this case is properly stated in the first, second, and third instructions on the part of the defendants, which were refused by the court. 8 Wend. R. 403, Seymour v. Van Slyck; Stone v. Seymour and Buck, 15 Wend. R. 19; 3 Johns. Dig. 451-2; 7 Cranch's R. 572; same case, 2 Cond. 611; 1 How. U. S. R. 250, United States v. Eckford's Executors. 2. In cases of bonds conditioned for the faithful discharge of duties for limited periods, the liabilities of sureties in such bonds cannot be extended beyond the period mentioned, either in its commencement or duration. See Norris' Peak, 414; 6 Cond. R. 611; 6 East, 507; 8 Mass. R. 276; 2 Saund. R. 411, 415; 2 Blacks. R. 934. 3. In this case the sureties were only liable for the collection of the revenue for the year 1840, and were in nowise bound for the defalcation of 1839, each set of sureties being entitled to the benefit of the moneys paid in during their respective suretyships. 4. The course pursued by the counsel for plaintiffs, in commenting upon and reading instructions which had been excluded from the jury, was unwarranted, and calculated to mislead the jury.

HAYDEN and RICHARDSON, for Appellee. 1. The court very properly instructed the jury as to the application of the payments made by Draffen during the fiscal year of 1842. 2 Starkie, 598, and note g; 1 Starkie's Ev. 153; 9 Wheat. 720; 5 Cond. R.; 2 Maule and Selwyn, 18; 2 Cond. Eng. C. L. R. 335; 5 Taunt. 596; 6 Taunt. 597; 6 Cranch, 320; 15 Wend. Stone v. Seymour, 39-44; 11 Cond. Eng. C. L. R. 35; 1 Pick. 336; 2 N. H. R. 196. 2. There is no error in that the demurrer to the defendant's plea of set-off was not disposed of before the trial, because there being no judgment on the demurrer, and issue being joined to said plea, this court will presume that the demurrer was withdrawn. Sweeney v. Willing, 6 Mo. R. 174; Patrick v. Conral, Litt. Sel. Cases. 3. The Circuit Court very properly refused to arrest the judgment. 2 Mo. R. 137.

NAPTON, J.

This was an action of debt upon the official bond of Draffen, as collector of the revenue of the city of Boonville for the fiscal year 1840. The bill of exceptions taken on the trial preserves the testimony and instructions of the court--upon which alone any question is presented.

The plaintiffs, it seems, were a corporation chartered by act of the Legislature, with authority to levy and collect taxes for the support of the city, appoint collectors, and take bonds. The defendant, Draffen, was appointed collector for the fiscal year 1840, which fiscal year commenced on the 3rd of May, 1840, and terminated on the 3rd May, 1841, and the bond sued on was executed by him, with Porter and Kukelham as securities. The condition of this bond was, the said Draffen, as collector of the city revenue for 1840, should well and truly discharge his duties. It also appeared, that said Draffen had been collector for the previous year, commencing on the 3rd May, 1839, and ending on the 3rd May 1840, and had given bond and security for the discharge of his duties during that year.

It also appeared that the register, who kept the accounts of the city, kept a general account with Draffen, commencing with the year 1839, and that, at the close of that year, to wit, on the 3rd of May, 1840, he was charged on the books of the register with a default of $1437; that this balance against him, at the close of the fiscal year 1839, was carried over to his account in 1840, the ta books of the general revenue were placed in his hands, and charged to him on general account, amounting to $2631 84; that, during said year, Draffen paid over and was credited with the sum of $3003; that nothing was said as to the application of said payments to any particular items of indebtedness, but the same was credited to him in general account, without any specific application by either party; that, in like manner, the special taxes for grading and paving Fifth street of said city, were placed in his hands, amounting to $4888, and debited in the said general account, on which he paid $4848 during the said year, 1840, which was credited to said general account; that Draffen was entitled to two per cent. for collecting the special tax aforesaid, which left a balance in his favor on said special tax of about $50. It also appeared, that after allowing said credit of $50, and all others credited in the fiscal year 1840, a general balance was struck against him for the sum of $1070 66.

It was also proved, that Draffen was unacquainted with the mode in which the register kept these accounts; that he made no objections put admitted the books to be correct, and was willing to settle by them. It appeared also that the register did not know from what source the moneys paid in during the fiscal year 1840 were derived.

On this evidence the court directed the jury 1. If they pelieved that the register of the city kept a running account against said Draffen, extending through the fiscal years 1839 and 1840, embracing the general and special taxes, and that, at the end of the year 1839, there remained due the city a balance, which was carried into the account current for the succeeding year; that Draffen was aware of this mode of keeping the accounts, and made no objections, and gave no directions as to any specific applications of the moneys he from time to time paid in, and that the register applied the payments to the general account, then the defendants are responsible for the default appearing at the commencement of this suit. 2. That the default of the fiscal year 1839 ought not to be charged against the defendants. 3. That although the register may have transferred the default of the officer, Draffen, for the fiscal year 1839, to the general account for 1840, yet these defendants are not accountable for that default. 4. That if Draffen made payments in 1840, and intended those payments to extinguish his liabilities for that year, then such payments must be so applied, and the intended application may be inferred from circumstances. Under these instructions, the plaintiff had a verdict for $1003, with interest. A motion for a new trial was made and overruled, and judgment was rendered on the verdict.

The law in relation to the imputation or application of payments, in running accounts between individuals, is well settled. The debtor has a right to direct to which account the payment shall be applied, and, if he is silent, the creditor may make the application; and in the absence of any indication of the intention of the parties, the law will make the appropriation, by applying the payment to the extinguishment of the oldest item of indebtedness. A difference of opinion has, however, prevailed, in the application of this rule to cases where the rights of securities are involved. In the United States v. Kirkpatrick, 9 Wheaton, 737, the rule was maintained, without any reference to a change of official...