Neal v. Freeman
| Decision Date | 31 October 1881 |
| Citation | 85 N.C. 441 |
| Court | North Carolina Supreme Court |
| Parties | J. G. NEAL v. B. F. FREEMAN and others. |
CIVIL ACTION tried at Spring Term, 1880, of MCDOWELL Superior Court, before Gilmer, J.
The plaintiff, being the sheriff of McDowell county in 1874, employed the defendant Freeman to aid him in the collection of taxes for that year, and took from him as principal and the other defendants as his sureties, a bond, dated September 14, 1874, the condition of which was that, if the said Freeman should collect or cause to be collected, and pay over unto the said sheriff, the taxes committed to him, in amount $1086.21, “within the time prescribed by law,” then the same to be void, &c.
The plaintiff alleges that the defendant Freeman had collected and failed to account for, of the taxes committed to him, the sum of $551.23; and it is to recover this amount that this action is brought. The defendants Flemming and Ledbetter admit the execution of the bond by them as sureties, but say, it was expressly limited to the payment of taxes, “in the time prescribed by law,” and that the plaintiff without notice to them, and without their consent or knowledge, extended the time for collecting and paying over, from time to time, and made no demand on said defendants; that it was expressly agreed that the time for collecting should be limited to four months, and that the said Freeman should be required to settle within that time; but that instead thereof the plaintiff had extended the time, and had aided and encouraged the said Freeman in his delay and failure to comply with the conditions of their bond, and not only did not inform them of his failure but concealed it, and misinformed the defendants with reference to it, by stating to them that it would be “all right,” and that he continued to so aid the said Freeman, and conceal his failure for more than a year after he had knowledge of it, and in so doing had lost his remedy against the defendant sureties; and that if plaintiff had given the defendants prompt notice of such failure, and had not extended the time for collection, they could have saved, to the plaintiff, the greater part of the amount not accounted for; but, that instead of so doing, he concealed the default until the time for collecting had passed.
On the trial the following issue was agreed to:
“What amount of taxes, if any, did Freeman collect and fail to pay over to the plaintiff, of the taxes placed in his hands for 1874?”
The plaintiff testified that he entrusted Freeman with the collection of taxes for two townships amounting to $1088.20, of which he had paid, at different times, $555.77, leaving a balance of $532.43. This amount the witness had accounted to the state for, so that the amount was due to himself. He put no tax books into Freeman's hands, but gave him a memorandum book, in which a list of the tax payers, and amounts due from them, were entered. On one occasion he called on Freeman for a settlement, but none was made--only some calculations-- the defendants, Freeman and Flemming, being present. At the instance of the former he wrote a letter to Ledbetter stating the amount he thought to be due from Freeman, which however turned out to be less than was really due. The following is a copy of the letter, written at Marion, January 11th, 1876, and addressed to Thomas Ledbetter:
(Signed J. F. Neal.)
“N. P. I find on examining my books, Freeman is behind only about $350 for the year 1874. J. F. N.”
The arrangement referred to in said letter was a promise made by Freeman to Flemming to bring down some corn and bacon to be applied to the amount due from the former. At said settlement Freeman said something about offering a horse, or mortgaging one, but no horse was produced. Witness offered to take the horse, but none was offered. The amount found due at the settlement was about the amount claimed in the action, and was admitted by the parties present to be due. Freeman said at that time that he would send some corn or bacon down.
Witness gave Freeman a receipt, of which the following is a copy:
The defendant Freeman testified that the foregoing receipt covered all the taxes paid to the plaintiff and all the receipts heretofore given, but not all the taxes placed in his hands; that he had paid over all the taxes collected in 1873 and 1874. Witness further testified that, at the instance of the defendants, Flemming and Ledbetter, he came to the court house, and had a settlement in which the books were looked over, and three hundred and fifty dollars found to be due.
The note from plaintiff to Ledbetter was then procured by witness, who wished a statement to show to Ledbetter. At that time witness made a payment of $150.
Another calculation was made at Flemming's house but witness could not remember the result, but thought it about $350.
The defendant Flemming testified that in January, 1876, the plaintiff came to him and informed him that he had heard Freeman was about to leave, and advised witness to see him. Witness went to...
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