Inhabitants of Cumberland County v. Pennell

• Citation: 69 Me. 357
• Parties: INHABITANTS OF CUMBERLAND CO. v. THOMAS PENNELL & others.
• Decision Date: 21 April 1879
• Court: Supreme Judicial Court of Maine (US)

69 Me. 357

INHABITANTS OF CUMBERLAND CO. v. THOMAS PENNELL & others.

Supreme Judicial Court of Maine.

April 21, 1879

ON EXCEPTIONS.

DEBT upon the official bond of Thomas Pennell as treasurer of the county of Cumberland, for the year 1874, executed by Pennell as principal and the other defendants as sureties, containing the following condition: " The condition of this obligation is such that whereas the said Thomas Pennell has been duly elected to the office of county treasurer of said county and entered upon the duties thereof; now, if the said Thomas Pennell shall well and faithfully attend to the duties of said office and perform all things required by said office to be performed, from the first day of January, 1874, to the first day of January, 1875, the term to which he has been elected, then this obligation to be void; otherwise to remain in full force and virtue."

The defendants pleaded non est factum ; with a brief statement setting out the conditions of the bond, and alleging in substance that Pennell performed the conditions therein contained according to the form and effect thereof that he well and truly attended to the duties of, and performed all things required by, said office of county treasurer to be performed, from January 1, 1874, to January 1, 1875; that during that time, he applied all moneys received by him to the use of the county in defraying its expenses as directed by the county commissioners and the supreme judicial court by their written orders therefor; that he paid over to the treasurer of the law library association of the county, all moneys received of persons admitted as attorneys in the supreme judicial court; that during said term, annually, and as often as required by the commissioners, he exhibited an account of all moneys and effects belonging to the county, holden by him as treasurer to the commissioners for adjustment, and the same was adjusted by them; that he has accounted with them for all receipts and payments during said time; and that he has performed all the duties prescribed in R. S., c. 8, and all other acts and statutes of the state applicable thereto.

That the plaintiffs provided a certain room in the city building in Portland, to be used as an office by the county treasurer and placed therein a safe for the purpose of depositing and keeping therein the moneys and effects belonging to said county and received by the county treasurer; that Pennell placed the moneys and effects of said county in said safe that being the only place provided by the county for the depositing and keeping of the same; that on the thirtieth day of December, 1874, the said Thomas Pennell being in said room occupied by the treasurer of said county, was suddenly set upon by robbers and instantly overpowered and rendered senseless and unconscious by reason of the violence and injury then and there inflicted upon him by said robbers, and that while the said Pennell was so senseless and unconscious the safe containing said moneys and effects was feloniously and burglariously broken open by said robbers, and said moneys and effects then and there belonging to said county were then and there feloniously and burglariously taken from said safe by said robbers and carried away, against the will of said Pennell; and that said Pennell has never been able to recover possession of said moneys and effects from said robbers or from any other person, for said county, and from that time has never had possession or control of said moneys and effects or the means of acquiring possession and control thereof, and that said Pennell at the time of said robbery and at all times prior thereto was in the exercise of due care; that said robbery was without fault or negligence on the part of said Pennell, and that if said loss and robbery of said money and effects were occasioned by the fault of any party, it was through the fault and want of care and precaution on the part of the plaintiffs, in whose care and management said money and effects then were, and not on the part of said Pennell.

That the plaintiffs caused said loss and contributed thereto by reason of the room and safe provided by them being improper and unsafe and insufficient for the purposes aforesaid of said county.

That the said Pennell has accounted with the commissioners of said county of Cumberland for all moneys and effects so feloniously and burglariously robbed from said safe, and has paid over as required by law all moneys and effects received by him, so far as by the law under his said bond he is required to do, and that subsequently, to wit, on December 31, 1874, the said Pennell adjusted with the county commissioners of said county his account of all money and effects received by him for said county, during his term of office as treasurer of said county, from January 1, 1874, to January 1, 1875.

That if said Pennell has not actually paid over money or effects belonging to said county, receied by him as treasurer, that said money or effects were feloniously and burglariously stolen and taken from said safe of said county in the manner and through the means as aforesaid.

The plaintiffs, by counter brief statement specifically denied every allegation in the defendants' brief statement, alleging, inter alia, that the said Thomas Pennell as the treasurer of said county of Cumberland, during the time named in said bond, had and received divers sums of money amounting in the whole to a large sum of money, to wit, the sum of ten thousand eight hundred and twenty-three dollars and forty-one cents belonging to the plaintiffs and for the use of said county, and hath not accounted for and paid to the plaintiffs the same or any part thereof, although often requested so to do, but hath therein wholly failed and made default; and the said sums of money so had and received by the said Thoms Pennell as aforesaid in his capacity of treasurer of said county as aforesaid are still wholly unpaid and unsatisfied to said plaintiffs, contrary to the form and effect of the said condition of the said writing obligatory.

That if the said moneys and effects were feloniously and burglariously stolen from said Pennell in the manner set forth in his brief statement, which is denied, such a robbery would not be a valid defense to this action.

The plaintiffs introduced in evidence the bond declared on and the testimony of the county commissioners tending to show that in their settlement with the treasurer he said that he had been robbed of a certain sum of money belonging to the county, to wit, $9,973.95; that a room was provided by the county for the treasurer at the extreme end of the west corridor in the city building; that the county commissioners provided for the taking care of the room as they did of all the county offices and owned all the furniture, including a Tilton & McFarland safe, having a plate on its front containing the words, " Manufactured for Cumberland County Treasury; " that a demand was duly made. There was also put into the case the settlement with Pennell by the commissioners, at the end of which was the following certificate in the handwriting of Pennell but signed by the commissioners:

" Cumberland ss. January 21, 1875. This may certify that we have examined the accounts of Thomas Pennell from October 1, 1874, to December 31, 1874, and find them correctly cast and properly vouched for, and the balance due the county is thirty thousand seven hundred and eighty-one dollars and four cents, and we find that there is now in the treasury the sum of twenty thousand eight hundred and seven dollars and nine cents, which has been paid over to Roscoe G. Harding, county treasurer for 1875, and the balance, being nine thousand nine hundred seventy-three dollars and ninety-five cents, was robbed from the treasury on December 30, 1874."

The defendants put in plans showing the locality of the treasurer's office and its surroundings.

The defendants offered testimony tending to show that the safe was put into the treasurer's office in 1868 by the county commissioners for the purpose of depositing and keeping the moneys and effects of the county therein; that the moneys and effects of the county were usually deposited in the safe; that the new safe was substituted for an old one; all of which was excluded.

The defendants offered to prove that the money claimed by the plaintiffs in this suit to the amount of $10,823.41, was taken by robbery on the evening of the thirtieth day of December, 1874; that on said thirtieth day of December, 1874, the said Thomas Pennell being in said room occupied by said Thomas Pennell as the treasurer of said county, at about six o'clock in the evening was suddenly set upon by two robbers and instantly overpowered and rendered senseless and unconscious by reason of the violence then inflicted upon him by said robbers; that while the said Pennell was so senseless and unconscious, the safe in said office, in which said moneys and effects had been placed by said Pennell, was feloniously and burglariously opened by said robbers, the door of said safe being closed and the bolts turned, but not locked, and said money then and there in said safe was then and there taken by said robbers and carried away against the will of said Pennell; that said Pennell has never been able to recover any part thereof; and that said robbery was without the fault or negligence of said Pennell.

Thereupon, the presiding justice ruled " that, assuming the robbery proved as offered by the defendants without the fault of the plaintiffs, it would constitute no defense to this action."

The court further ruled as matter of law that the plaintiffs were entitled to recover interest on the amount of the deficiency from the first day of January, 1875....