Harrison Township of Henry County v. Addison

• Decision Date: 27 October 1911
• Docket Number: 21,955
• Citation: 96 N.E. 146,176 Ind. 389
• Parties: Harrison Township of Henry County et al. v. Addison
• Court: Indiana Supreme Court

96 N.E. 146

176 Ind. 389

Harrison Township of Henry County et al. v. Addison

No. 21,955

Supreme Court of Indiana

October 27, 1911

From Henry Circuit Court; John W. Macy, Special Judge.

Action by Milton Addison against Harrison Township of Henry County and another. From a judgment for plaintiff, defendants appeal. Transferred from Appellate Court under § 1405 Burns 1908, Acts 1901 p. 590.

Reversed.

Fred C Gause and Barnard & Jeffrey, for appellants.

Forkner & Forkner, for appellee.

OPINION

Cox, J.

This is an action brought by appellees against appellants for money had and received and on account. The issues formed were tried by the court without the intervention of a jury. The court made special findings of facts and stated its conclusion therefrom, that the law was with the appellee, and that he was entitled to recover from appellants the sum of $ 1.019.36. Judgment was rendered accordingly.

The one question presented by this appeal is whether the court drew the right conclusion of law from the facts found, which are in substance, as follows: (1) That appellee was elected, and that he qualified, as trustee of Harrison township, and thereupon acted as such from November, 1900, to January 1, 1905. (2) That he made his annual settlements as required by law, and on December 31, 1904, he made his final settlement, which was approved by the township advisory board and was filed with the auditor of the county, in which he showed the amount of money received by him, and that he had accounted for all the funds of the township. (3) That when he took the office the township was indebted to a bank on notes duly executed by his predecessor in the sum of $ 9,400; that as trustee he made payments from time to time on the principal and interest thereon, for part of which payments he received vouchers from the holder of the indebtedness, and for others he did not, but the latter were credited on the note representing the indebtedness; that at the close of his official term said indebtedness had been fully paid and satisfied, both interest and principal, except the sum of $ 3,500, and he executed a note of the township for said balance, and took up the original note and filed it with his last settlement as a voucher; that in one of his settlements, made shortly before the succeeding January distribution, there were not sufficient funds on hands to pay the disbursements made by him including his salary for the year, and in order to balance his accounts, and under the direction of the advisory board, he charged himself with the sum of $ 400, as received from other sources, in anticipation of the succeeding January distribution, intending to pay himself therefrom, and never took or received any credit counterbalancing such charge so made against himself, and that the township became indebted to him for said sum of $ 400 as money loaned; that in making his final settlement he claimed a credit on account of payments, made upon said indebtedness, to said bank, for which he had not taken special vouchers, and said loan amounting to $ 1,653; that upon a true accounting of the amount of said indebtedness at said bank appellee was entitled to $ 799.94 credit on account of payments, principal and interest, paid thereon, over and above and in excess of all credits taken in said settlement on account of payments therein aside from said $ 1,653, and that there was due to him, on account of said item of $ 400, the further sum of $ 400; that in said final settlement he was entitled to a credit on the items in the sum of $ 1,199.94, instead of said sum of $ 1,653. (4) That in one of his said settlements he took credit for $ 240 paid for school teaching, whereas he in fact paid, and the voucher therefor showed that he had paid, $ 290, and that he was entitled to an additional credit of $ 50 on account of said payment in excess of the amount taken by him in his said settlement. (5) That in the year 1902, appellee was entitled to a salary for his services as said trustee in the sum of $ 550, as duly allowed by the advisory board of said township; that in making his account he failed and neglected to take credit for said salary, but that in making up his account he did receive credit for $ 426.60 that he was not entitled to, and that the township became and was indebted to him in the sum of $ 124.80, on account of the salary unpaid; that surcharging and falsifying the settlements and accounts of said trustee, and giving him proper credits for the items before stated at the time he made his final settlement, there was in fact due from him to the township the sum of $ 279.64. (6) That he had not intentionally converted any of the funds of said township, and that the errors in his accounts were errors of omission and miscalculation. (7) That on March 25, 1905, the grand jury of Henry county, Indiana, returned two indictments against him, charging him in each with the unlawful and felonious embezzlement, while in said office, of the sum of $ 1,000 of the funds of said township in his hands as said trustee; that he was arrested upon said indictment upon warrants issued thereon, and taken into custody by the sheriff of said county, and gave bond for his appearance, to avoid being imprisoned awaiting the trial of said causes; that he employed counsel in the defense of the case, and his counsel, protesting to the court that said defendant was not guilty of embezzlement, and that if there were any errors in his accounts he stood ready and willing to correct them, proposed in open court to the court, and to the prosecuting attorney, that the matter of his accounts be referred to any disinterested accountant that the court might appoint; and if it was found that he owed the township anything he stood ready and willing to pay it, upon the discontinuance of said prosecution; that thereupon, with the knowledge and approval of the court, a formal written agreement was entered into, signed by the prosecuting attorney and the defendant, and filed in said prosecutions, agreeing that said accounts should be referred to Erie Morgan, an accountant, who should examine the accounts, hear the testimony of the parties, and report to the court the true statement thereof; that said Morgan thereafter reported to the court a deficit of $ 2,901.49; that appellee thereupon, by his counsel, excepted and objected to said report, and asked the court to review it; that the judge of the court thereupon took the report, and without hearing any evidence, and in the absence of and without the knowledge of appellee, determined that there was $ 1,150.95 due from him to said township, instead of said $ 2,900, and thereupon entered an order in said causes that, upon the payment by appellee to the clerk of the Henry Circuit Court of said sum of $ 1,150, the causes would stand dismissed; that a short time thereafter appellee appeared before the clerk of said court, and for the purpose of avoiding said prosecution paid into his hands the sum of $ 1,150.95, at the time stating to said clerk that he paid it under protest, and would bring suit to recover, and the clerk executed and delivered to him a receipt for said $ 1,150.95, stating in the body thereof that the sum was paid under protest; that after said payment the court entered the further order in said causes that, since it appeared to the satisfaction of the court that appellee had paid into the clerk's office said sum of money, said causes were ordered nollied and dismissed, and they were thereupon discontinued; that at the time of the finding of said indictments, and during the pendency thereof, there was considerable agitation and excitement in the community and in the public press concerning the subject, and said payment was made involuntarily and for the purpose of avoiding prosecution. (7 1/2) That more than one year elapsed after the finding of said indictment and appellee's arrest before he paid said sum of $ 1,150.95 to the clerk, and during said time he had access to said accounts, papers and vouchers at his will. (8) That appellee, the prosecuting attorney and the Henry Circuit Court were the only parties to said proceedings, and said township was not in any way a party thereto, and took no part therein, and was in noway affected thereby, other than that said funds were paid over to said township; that it received said funds, and thereafter this suit was brought to recover the money so paid over. (9) That deducting the sum due to said township from the appellee--to wit, the sum of $ 279.64 from the $ 1,150.95 paid by him into the clerk's office for the use of said township--there was due to appellee from said township the sum of $ 871.31 with the interest thereon from April 2, 1906, in all the sum of $ 1,019.36.

This appeal is founded on the proposition that the facts specially found by the court show that the payment by appellant of the sum over the amount shown to be actually due from him to the township was a voluntary payment, and therefore cannot be recovered. This proposition is supplemented by the additional one that appellee, in delaying his suit more than seventeen months after the removal of the alleged duress was guilty of laches, which would defeat his cause if originally well founded.

Appellee in an effort to sustain the...