Inhabitants of Egremont v. Benjamin

• Decision Date: 17 July 1878
• Citation: 125 Mass. 15
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: Inhabitants of Egremont v. Joseph A. Benjamin & others

125 Mass. 15

Inhabitants of Egremont v. Joseph A. Benjamin & others

Supreme Court of Massachusetts

July 17, 1878

Argued September 12, 1877 [Syllabus Material]

Berkshire. Contract on a bond, for $ 10,000, signed by the first named defendant as principal, and the others as sureties, dated March 29, 1875, and containing the following condition: "The condition of this obligation is such that whereas the said Joseph A. Benjamin has been chosen treasurer and collector of taxes for said town of Egremont for the current year, and accepted said offices, and been duly sworn to the faithful discharge of the duties thereof respectively; now if the said Joseph A. Benjamin shall, as treasurer and collector as aforesaid, faithfully collect account for and pay over all the taxes he shall be legally required to collect, and also faithfully discharge all other legal duties of said offices, then this obligation shall be void, otherwise to remain in full force and virtue." Writ dated May 18, 1876. Trial in the Superior Court, without a jury, before Bacon, J., who allowed a bill of exceptions in substance as follows:

It was admitted that there had been a breach of the bond, owing to the failure of the defendant Benjamin, as collector of taxes to pay to the treasurer of the county of Berkshire the sum of $ 1102.94, as directed by the assessors of the plaintiff town, in their warrant to him as collector of taxes; and that judgment should be entered for the plaintiff for the penalty of the bond, and execution awarded for the damages growing out of that breach.

It appeared that Benjamin, who died in 1876, after the commencement of the suit, had held for several years prior to March 29, 1875, the offices of treasurer and collector of taxes, and had given bonds with sureties, other than those on the bond in suit, for the faithful discharge of his official duties in those years; that at the annual town meeting on March 29, 1875, Benjamin reported to the town the condition of the treasury for the year ending on that day, showing a balance due from him as treasurer of $ 797.12; and, as the first item of his account as treasurer for 1875, charged himself with this balance, and then with various sums received during the year, and with the whole amount of taxes committed to him as collector for 1875, except the county tax, and credited himself from time to time with money paid by him on orders drawn by the selectmen, to an amount of between $ 3000 and $ 4000.

The sureties offered evidence tending to prove that on March 29, 1875, Benjamin had not, in fact, in his hands as treasurer, the sum of $ 797.12, even though he ought to have had that sum in his hands as a balance due from him, as treasurer, to the town; but that he had, prior to that day, mingled it with his own moneys, using it and converting it to his own business. But the judge held that it would not be competent to find, upon the evidence offered, a misappropriation of the money previous to March 29, 1875, and ruled that the evidence was immaterial.

At the annual town meeting on March 20, 1876, a committee was appointed to settle with Benjamin as treasurer. This committee reported at an adjourned meeting held on April 10, 1876, and their report, which showed a balance due from Benjamin, was accepted by the town. On the following day, Benjamin handed over to his successor in the office of treasurer the tax lists of 1874 and 1875, in each of which there were uncollected taxes, and also his account book as treasurer, and paid to his successor the sum of $ 64.

The defendants asked the judge to rule as follows:

"1. The sureties of Benjamin, as treasurer for the year 1875, are liable only for moneys that were in his hands as treasurer on March 29, 1875, or received by him as treasurer subsequently thereto; but they are not liable for moneys reported by him on March 29, 1875, as in his hands as treasurer, but which in fact had been converted to his own use, and not actually in his hands on that day.

"2. If Benjamin did not keep the money of the town separate from his private funds, but allowed the moneys officially received to be mingled with his private funds, and to be used in his private business, such mingling and use would be a conversion of the public funds, and the sureties for 1875 would not be responsible for moneys so converted prior to March 29, 1875.

"3. In order to maintain this action for moneys in the hands of Benjamin as treasurer, a demand on Benjamin should have been made before suit; and if no such demand was made, then the amount in his hands as treasurer should not be included in the amount of damages for which execution should issue in this case."

But the judge refused to rule as requested; ruled that a demand was not necessary, and ordered an...