Father Matthew Young Men's Total Abstinence & Benevolent Soc'y v. Fitzwilliam

• Citation: 12 Mo.App. 445
• Parties: FATHER MATTHEW YOUNG MEN'S TOTAL ABSTINENCE AND BENEVOLENT SOCIETY, Respondent, v. JOHN J. FITZWILLIAM ET AL., Appellants.
• Decision Date: 27 June 1882
• Court: Court of Appeal of Missouri (US)

12 Mo.App. 445

FATHER MATTHEW YOUNG MEN'S TOTAL ABSTINENCE AND BENEVOLENT SOCIETY, Respondent,

v.JOHN J. FITZWILLIAM ET AL., Appellants.

St. Louis Court of Appeals, Missouri.

Jun. 27, 1882.

1. The report of a referee will not be disturbed as being against the weight of evidence where there is substantial evidence to support it.

2. The obligors in a bond are estopped to deny the corporate existence of the body to whom it was given.

3. A reference properly made does not become erroneous ex post facto by reason of admissions against interest, made by the party objecting to the reference, which render an examination of accounts unnecessary.

4. Sureties on the bond of the treasurer of a society are liable for a default in payment of moneys coming into the hands of the treasurer, as such.

5. The treasurer's statement, made in accordance with his duty and during the period covered by the bond but after his removal for misconduct, is competent against his sureties, and is prima facie evidence of the facts therein stated.

6. If it does not appear that the appellant could have been prejudiced thereby, the admission of incompetent testimony is not sufficient ground for a reversal of the judgment.

APPEAL from the St. Louis Circuit Court, LINDLEY, J.

Affirmed.

LUCIEN EATON and WALKER & WALKER, for the appellants.

GEORGE A. CASTLEMAN, for the respondent.

BAKEWELL, J., delivered the opinion of the court.

This is an action upon a bond executed by Fitzwilliam as principal, and by the other defendants as his sureties. The bond was given to plaintiff, which is alleged to be a corporation, and is dated January 12, 1876. The penalty of the bond is $5,000, and it is conditioned that Fitzwilliam, who has been elected treasurer of the corporation, will faithfully perform his duties as treasurer, account for, and pay over, all moneys and effects which come to his hands whilst in office, and, at the expiration of his term, upon request, deliver to the society a correct account of all money and property which comes into his custody as treasurer, and pay to his successor in office all money or property which shall be in his hands and due by him to the society. The petition sets out all this, and alleges that Fitzwilliam received large sums of money, for which he refuses to account, and did not, at the expiration of his term, upon request, pay to his successor the sums in his hands and due by him to plaintiff; that there was, at the end of his term, in his hands a balance of $3,695.80, which he refuses to pay plaintiff on request.

The answer of defendants admits the bond as set forth, and the election of Fitzwilliam as recited, but denies, specifically, the incorporation of plaintiff, and, generally, all other allegations of the petition.

The cause was referred, against the objection of defendants. The referee reported in favor of plaintiff, and his report was confirmed, all exceptions being overruled, and there was judgment accordingly.

The report of a referee is as a special verdict. We have repeatedly said that we will not go into the weight of the evidence, but will presume the finding of the referee to be correct, where there is any substantial evidence to support it. In this, we have followed the rulings of the supreme court, as we are bound to do. Franz v. Deitrick, 49 Mo. 95; Brooks v. West, 3 Mo. App. 582; Wood v. Missouri Staats-Zeitung, 3 Mo. App. 602; 9 Mo. App. 577, 579; St. Louis Stoneware Co. v. Partridge, 8 Mo. App. 218.

There is nothing in the objection that there was no evidence of the incorporation of plaintiff. The defendants, who are obligors on the bond, by making and signing the instrument, admit the corporate capacity of the plaintiff, who is the obligee, and cannot, in an action on the bond, plead nul tiel corporation. City v. Shields, 62 Mo. 247. We do not look into the question as to the sufficiency of the evidence introduced as to plaintiff's incorporation. The plaintiff offered the certificate of incorporation issued to it by the circuit court; the referee found this competent and sufficient. We see no reason to doubt the correctness of his conclusion in this respect; but the matter is immaterial, owing to the estoppel.

Appellants contend that the case was improperly referred against their consent. It is certain that the permission to refer the whole issue without consent, applies only to cases in which accounts exist between the parties and require examination. It was not the intention of the legislature to take away the right to a jury trial, except in cases where an account was directly involved in the issue. Thornton v. Life Assn., 7 Mo. App. 544. And the statutory requirement is, that the account should be “a long account.”

The petition showed that the claim was for a “balance” due by the treasurer of a corporation for moneys received by him, from time to time, during the time that he was treasurer. It was to be presumed that this involved the examination of receipts and disbursements. The record shows that numerous receipts admitted to have been signed by Fitzwilliam were admitted in evidence, and objected to on no other specific ground than that most of them were not within the term of office contemplated by the bond. It is true, exhibits in the nature of admissions by Fitzwilliam were also introduced, and these were held by the referee to make out a prima facie case, and his finding seems to have been based upon them taken together with the oral testimony of Fitzwilliam. But appellants claimed and claim that these exhibits were incompetent for any purpose. The action was certainly not upon the exhibits, which were merely evidential facts. Upon the whole, we think that the case was one in which the pleadings showed to the court that an examination of accounts was necessarily involved, and that the order of reference did not become erroneous ex post facto because the introduction at the trial of certain admissions against interest may have superseded to some extent an examination of accounts and comparing of debts and credits which it might otherwise have been necessary to go into more at length. All this will appear more fully in considering the objections to evidence.

It appears that Fitzwilliam was treasurer of plaintiff during the years 1874 and 1875, and, on January 11, 1876, was again elected his own successor for one year. He executed the bond in suit on January 12, 1876, and delivered it on the 6th of February following. From the latter end of March, 1876, until July, Fitzwilliam was in bad health...