Gordon v. Hennings
| Decision Date | 06 May 1911 |
| Docket Number | 16,443 |
| Citation | 131 N.W. 228,89 Neb. 252 |
| Parties | WILLIAM A. GORDON, APPELLANT, v. AUGUST HENNINGS ET AL., APPELLEES |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ABRAHAM L SUTTON, JUDGE. Reversed.
REVERSED.
L. D Holmes, for appellant.
M. L Learned, A. G. Ellick, McGilton, Gaines & Smith, Crofoot & Scott and Stout & Rose, contra.
A history of the transaction out of which this litigation arises may be found in Gordon v. City of Omaha, 77 Neb. 556, 110 N.W. 313. That suit was prosecuted by the plaintiff herein against the city; the instant one is against the bondsmen of the late city treasurer. From a judgment rendered upon a directed verdict in the defendants' favor the plaintiff appeals.
The defendants justify the court's instruction on two grounds: First, the opinion in Gordon v. City of Omaha, supra ; second, for the alleged reason that, until Judge Gordon shall have settled with his counsel Mr. Eller, this action cannot be maintained. Gordon v. City of Omaha, supra , holds that under the city charter notice to the treasurer that Eller had been discharged, and therefore was not authorized to collect the Gordon warrants, was not notice to the city. The opinion does not hold that, if Hennings with notice of these facts paid the money to Eller, he would not be liable to the plaintiff therefor. By executing the undertaking, the bondsmen agreed that their obligation should remain in force if the city treasurer did not faithfully discharge all of the duties of his office. The principal duty which the law casts upon the treasurer is to pay to the persons named in the warrants the funds in his hands appropriated for that purpose. Mr. Hennings did not pay the warrants to the person to whose order they were drawn, nor to the individual to whom the claims had been assigned. Hennings paid the money by color of his office, and both he and his bondsmen became liable to the party injured thereby. Turner, Frazer & Co. v. Killian, 12 Neb. 580, 12 N.W. 101; Barker v. Wheeler, 71 Neb. 740, 99 N.W. 548. The first defense is not seriously insisted upon, and we are of opinion that it should fail.
As to the second defense, Judge Gordon and the plaintiff disclose in their testimony that Mr. Eller, while attorney for Judge Gordon, secured possession of the warrants, and subsequently refused to deliver them to either Gordon until he was paid a balance of $ 1,400, which he asserted was due him for legal services rendered in the litigation which brought these warrants into existence. An inference may be drawn from this testimony that subsequently Mr. Eller was paid $ 575 on this account, but, construing the testimony in the light most favorable to the defendants, Mr. Eller did not assert a charging lien in excess of $...
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