Powers v. Hamilton.*

• Decision Date: 09 September 1915
• Citation: 117 Va. 810,86 S.E. 98
• Parties: POWERS et al. v. HAMILTON.*
• Court: Virginia Supreme Court

86 S.E. 98

117 Va. 810

POWERS et al.

v.HAMILTON.^*

Supreme Court of Appeals of Virginia.

Sept. 9, 1915.

Error to Circuit Court, Wise County.

Statutory proceeding by R. P. Hamilton against J. W. Powers and others. Judgment for plaintiff, and defendants bring error. Amended and affirmed.

Bond & Bruce, of Wise, for plaintiffs in error.

Vicars & Peery, of Wise, for defendant in error.

KELLY, J. This is a proceeding by R. P. Hamilton, late treasurer of Wise county, in which he obtained a recovery against J. W. Powers, one of his deputies, and against the sureties upon the official bond of the said Powers, for the amount of certain taxes and levies and 10 per cent. interest thereon, under the provisions of section 854 of the Code. This section, so far as material here, is as follows:

"If any such deputy shall fail to collect, or having collected fail to pay over to his principal any taxes or levies which he ought to have collected or may have received, he and his sureties shall be liable to such principal, upon motion, for the amount of the deficiency in said taxes or levies, together with damages thereon, at the rate of ten per cent. per month from the time such payment should have been made."

The defendants pleaded the general issue, and filed a special plea alleging that Powers had a contract with Hamilton, under the terms of which the latter was to take up all uncollected tax tickets from Powers, andthat Powers was not to be liable for any such tickets.

The first assignment of error complains of the action of the court in refusing to allow the plaintiff on cross-examination to answer this question:

"Now, you tried to get Mr. Powers to take this business on a commission, did you not, at first, and he refused to do so, and you hired him at $50 per month?"

The bill of exceptions upon which this assignment is based does not show at what stage of the examination this question was asked, nor does it contain enough of the evidence to enable this court to obtain a clear understanding of the propriety or impropriety of the ruling of the court, and we would be justified in disposing of it without further comment, under the authority of Jacobs v. Warthen, 115 Va. 571, 80 S. E. 113, and cases there cited. We will add, however, that the refusal of the court to permit this question to be answered could not have prejudiced the defendants, in view of the latitude allowed them in the cross-examination of the plaintiff as to the terms of the contract of employment which he had actually made. This clearly appears from bill of exceptions No. 1, in which all of the evidence is stated. It is suggested in the brief of counsel for defendants that the avowed answer to the above question would have tended to corroborate certain testimony of the defendant Powers. The question, however, was propounded to the plaintiff on cross-examination before the defendant had testified, and the occasion for corroboration could not at that time have arisen.

During the course of the cross-examination of the plaintiff he was asked this question, "You do not mean to say that he [Powers] bound himself to collect all of the tickets?" and the court refused to permit the witness to answer the question, and stated, "That is a matter of law." This ruling and this language constitute the subject of the second assignment of error.

The bill of exceptions upon which this assignment rests, like the first one noticed, sets out absolutely nothing with reference to the evidence, except the question itself and the action of the court thereon. But, dealing with it as with the first assignment, and viewing it in the light of all the evidence, there was no error. The court's statement in the abstract was correct. The duty of a deputy treasurer with reference to the tax tickets in his hands is, as a general proposition, "a matter of law, " and it appears that almost immediately after the court refused to permit the above question to be answered, and used the language above quoted, it did permit the defendants' counsel to fully examine the plaintiff and have him fully answer all about the terms of the contract, and whether or not the defendant Powers did agree to collect all the tickets. In the course of that examination the court made the statement that "if there was nothing said about it the law directed what he should do." This statement of the court was entirely sumcient to explain the previous language, and to prevent it from resulting in any prejudice to the defendant

The third assignment of error complains of the refusal of the court to permit J. W. Powers to testify that, when he settled with R. P. Barron (the predecessor of R. P. Hamilton, and for whom he was deputy under a contract alleged to have been similar to that which was set up in the aforesaid special plea), the said Barron took back $155.93 in tax tickets and gave him credit for them, and that these same tickets were among those turned over to R. P. Hamilton by Barron, and then again turned over to Powers. The contention is that this evidence was material to prove the terms of the contract and the character of the tax tickets that were placed in the hands of Powers for collection.

We are of opinion that any contract which the defendant Powers had with Barron was immaterial, and could have had no proper place in this case, as tending to show what the contract was between Hamilton and Powers. If Hamilton had turned over to Powers $155.93 of tax tickets, or any other amount of tax tickets, which could not under the law be collected by levy or returned delinquent, and the court had refused to allow the defendants to show that fact, and had thus permitted; Powers to be charged with tickets which from the beginning were known to be worthless for any purpose, it might have been prejudicial to the defendants; but it sufficiently appears from the record that the exact amount of the Barron tickets above mentioned was allowed by the jury as a credit upon the amount for which the...