McIntosh v. Johnson

• Decision Date: 17 March 1897
• Citation: 51 Neb. 33,70 N.W. 522
• Parties: MCINTOSH v. JOHNSON.
• Court: Nebraska Supreme Court

51 Neb. 33

70 N.W. 522

MCINTOSH

v.JOHNSON.

Supreme Court of Nebraska.

March 17, 1897.

Syllabus by the Court.

1. Statutes remedial in their nature should receive a liberal, and not a restrictive, construction.

2. An imperative rule of construction is that effect, if possible, must be given to every clause and part of the statute.

3. A legislative enactment will be given a prospective operation unless a contrary intent is clearly expressed.

4. Held, that the act of the legislature of 1879, entitled “An act to provide for the collection of public funds and money” (sections 4 and 5, c. 8, Comp. St.), operates prospectively, as well as retroactively.

5. Bank v. Gandy, 9 N. W. 566, 11 Neb. 433, disapproved.

6. A payment of a part only of a liquidated past-due debt, in full settlement, is not good as an accord and satisfaction.

Error to district court, Douglas county; Blair, Judge.

Action by James J. McIntosh, treasurer of Cheyenne county, against Frank B. Johnson. From a judgment for defendant, plaintiff brings error. Reversed.L. F. Crofoot, Breckenridge & Breckenridge, and W. P. Miles, for plaintiff in error.

Wharton & Baird, for defendant in error.

NORVAL, J.

During 1888 and a part of 1889, the defendant, Frank B. Johnson, and one S. C. Morgan, were partners, engaged in a general banking business at Sidney, Cheyenne county, under the firm name and style of the State Bank of Sidney. In the latter part of June, 1889, Mr. Morgan died, leaving the defendant the sole surviving partner; and the bank, being insolvent at the time, closed its doors, and did not afterwards resume business nor pay its depositors. From January 7, 1888, to June 26, 1889, both dates inclusive, Adam Ickes, the treasurer of Cheyenne county, in his official capacity, deposited in said bank, on open account, large sums of money belonging to the county, and withdrew a portion thereof as required for use. On the day the bank suspended payment, Mr. Ickes, as such county treasurer, had upon deposit therein county funds to the amount of $17,357.40. Plaintiff is the successor in office to the said Adam Ickes, and, as such, instituted this suit to recover from the defendant, as surviving partner, the sum of $11,857.40, alleged to be the balance due the county of Cheyenne on account of the moneys so deposited in said State Bank of Sidney. A trial of the issues raised by the pleadings was had to the court, resulting in a finding and judgment against the plaintiff.

Two defenses are relied upon by the defendant to defeat the action, to wit: (1) Neither the county of Cheyenne nor the plaintiff ever had any legal claim against the defendant or the State Bank of Sidney on account of the funds deposited by Treasurer Ickes; (2) Accord and satisfaction. These propositions will receive attention in their order.

The first contention is to a greater or less extent sustained by two decisions of this court, viz.: State v. Keim, 8 Neb. 63, and Bank v. Gandy, 11 Neb. 431, 9 N. W. 566. The first case was an action by the state to recover certain public funds belonging to it, which had been deposited with the defendants, who were engaged in the banking business at Fall City, under an agreement that it should be delivered upon demand. It was held there could be no recovery, since the deposit was unauthorized, and there had been no ratification of it by public law. The writer by no means concedes that an illegal or unauthorized deposit of state moneys in a bank constitutes no cause of action in favor of the state to recover such moneys; but, accepting the decision in State v. Keim to be sound, is it decisive of the question before us? We do not think so. After it was rendered, the legislature, in 1879, passed the following act, which received the approval of the executive:

“An act to provide for the collection of public funds and moneys.

Be it enacted by the legislature of the state of Nebraska:

Section 1. That in all cases in which public moneys, or other funds belonging to this state, or to any county, school district, city, or municipality thereof, have been deposited or loaned to any person or persons, corporation, bank, co-partnership, or other firm or association of persons, it shall be lawful for the officer or officers making such deposit or loan, or his or their successors in office, to maintain an action or actions for the recovery of such moneys deposited or loaned, and all contracts for the security or payment of any such moneys or public funds made shall be held to be good and lawful contracts, binding on all parties thereto: provided, nothing herein contained shall be construed to in any manner affect the liability of any surety or signers of any official bond heretofore or hereafter given or made in this state.

Sec. 2. All actions heretofore brought by any public officer, either in his own name or officially, for the recovery of any public moneys heretofore loaned or deposited shall be sustained, and all remedies allowed in other cases, by attachment or otherwise, shall be admissible and allowed in such actions as in other cases.”

Comp. St. c. 8, §§ 4, 5; Sess. Laws 1879, p. 156, §§ 1, 2.

It was the decision in State v. Keim, supra, doubtless, which prompted the legislature to enact this law, for the purpose of authorizing the collection by suit of public moneys illegally loaned or deposited by their custodian,--a remedy which this court had ruled did not theretofore exist in this state. If the act above quoted is to be given prospective operation, and not a retroactive effect merely, then it is very evident that the present action is maintainable.

It is argued by the defendant that the purpose of the act of 1879 was to legalize prior contracts made by treasurers for the depositing or loaning of public funds, and to empower the treasurer making such loan or deposit, or his successor in office, to collect the same by suit, and that this law has no prospective application. The case of Bank v. Gandy, 11 Neb. 433, 9 N. W. 566, is authority for such interpretation. The question there involved was whether county moneys deposited in a bank by county treasurers prior to the enactment of the present depository law are subject to garnishment process in a suit to recover a debt of the officer depositing the same. It was held that they were, since it did not lie in the mouth of Mr. Gandy, or any of his privies, of which the depository bank was one in respect to the funds, to...