Mason v. Fractional School District No. 1 of Scio and Webster

• Decision Date: 13 June 1876
• Court: Michigan Supreme Court
• Parties: Erastus P. Mason v. Fractional School District No. 1 of Scio and Webster

34 Mich. 228

Erastus P. Mason v. Fractional School District No. 1 of Scio and Webster

Supreme Court of Michigan

June 13, 1876

Submitted on Briefs April 19, 1876

Error to Washtenaw Circuit.

Judgment affirmed, with costs.

E. D Kinne and A. J. Sawyer, for plaintiff in error.

H. J Beakes, for defendant in error.

OPINION

Graves, J.

Mason was assessor of the district fro the first Monday of September, 1867, until the first Monday of September, 1872, when, as the district claims, one Patrick Hughes was elected his successor and at once qualified.

It is admitted that in the course of this holding Mason received a large amount of district money, and particularly the sum of three hundred and fifty-three dollars and fifty-two cents. He himself swore to the receipt of various large sums. Hughes, his successor, made demand on him, and he refused to pass any over. The balance charged to be in his hands, and which was demanded, he claimed to have paid out on district liabilities. But the district maintained that supposing the payments to have been made, the liabilities were not district liabilities at all, and the expenditure was unauthorized. The district sued him for money had and received, and sought to recover in that form this balance.

He pleaded the general issue, and gave notice of set off. Subsequently he asked that the action should be referred, and the court complied with his request. The gentleman appointed, after a hearing consuming two weeks, made a very concise but clear and distinct report in favor of the district for three hundred and fifty-three dollars and fifty two cents with interest from the third Monday of September, 1872, this sum of three hundred and fifty-three dollars and fifty two cents being forty cents less than the specific sum claimed by the district before the trial.

The plaintiff in error caused a bill of exceptions to be settled, and also filed exceptions to the report. But the court overruled the exceptions and confirmed the report, and awarded judgment in accordance with it. The case is now before us on writ of error. There are sixty-seven charges of error, but many are without plausibility, and others still have no foundation in the record. It would be quite unprofitable to follow the return to the writ of error and notice each separate exception. In view of the character and relation of the parties, the form of the pleading and the real nature of the controversy, it is manifest that a great deal of testimony was submitted, and many questions started, having no practical materiality whatever. To such extent as the case under indulgent treatment may be supposed to fairly call for particular consideration, I proceed to consider it.

It is objected that the action for money had and received is not a lawful remedy, and that in view of our provisions of law an action on the assessor's bond is the exclusive course. The court think differently. The regulations concerning the giving of security do not exclude recourse directly against the party as upon a common-law liability under the action for money had and received to the use of the district.

The bond is required in order to afford other and greater security than the individual responsibility of the person serving, but not to supersede his separate individual responsibility. Suppose by some mischance or oversight or neglect no bond should be obtained, or suppose the bond given should turn out to be insufficient in amount, it would be strange if the law should refuse a remedy against the party himself to recover the district money. Our legislation is open to no construction which will permit an assessor holding district money, and individually able to respond, to set the district at defiance if for any reason there is inability to obtain redress upon the kind of security superadded by the statute, and there is no ground for saying the common-law remedy may not exist as well where the proper and sufficient bond is given as where it is not. But the right of action, apparently clear or principle, has been fully vindicated in judicial decisions.-- Welch v. Frost, 1 Mich. 30; Board of Commissioners of Gibson County v. Harrington, 1 Blackf. 260; Walton v. The United States, 22 U.S. 651, 9 Wheat. 651; Allen v. McKean, 1 Sumn. 276; Inhabitants of Adams v. Farnsworth, 15 Gray 423; see also Staples v. French, 10 N.H. 72, 76; Arris v. Stukely, 2 Mod. 260; Rains v. Commissary of Diocese of Canterbury, 7 Mod. 146; Boyter v. Dodsworth, 6 Term. 681; Mayor of Harwich v. Gaunt, 30 E. L. & E., 354; Inhabitants of Belchertown v. Bridgman, 118 Mass. 486.

The referee expressly found that Mason's successor (Hughes) was elected and qualified on the first Monday of September 1872, and that he made demand on Mason on the third Monday to pass over the money, and that Mason refused. Hughes' acceptance and bond, according to the finding, had been on file two weeks when this demand was made, and Mason was chargeable with notice of Hughes' election, and that he had qualified. There was no provision of law for any personal certification of the fact to him, and he cannot insist that any such certification was needful to make it incumbent upon him to pass over any money in his hands. Moreover there is no finding that he took any such position. As a member of the corporation, and assessor, his means of knowledge were ample, and there is nothing in the report to indicate that the place was not in fact at once taken by Hughes. The necessary implication is that is...