Prairie School Township v. Haseleu

• Citation: 55 N.W. 938,3 N.D. 328
• Decision Date: 06 July 1893
• Docket Number: 6731
• Court: United States State Supreme Court of North Dakota

55 N.W. 938

3 N.D. 328

PRAIRIE SCHOOL TOWNSHIP v. WM. HASELEU, et al

No. 6731

Supreme Court of North Dakota

July 6, 1893

Appeal from District Court, La Moure County; Rose, J.

Action on a bond by the Prairie School Township against William Haseleu, August Beckman, and Stephen Kohan. Defendants had judgment, and plaintiff appeals.

Affirmed.

George W. Newton, for appellant.

L. C Harris and E. W. Camp, for respondents.

WALLIN J. CORLISS, J., concurs. BARTHOLOMEW, C. J., took no part in the decision.

OPINION

WALLIN J.

This action is brought to recover damages for an alleged breach of the condition of an official bond given by an ex-treasurer of the plaintiff. All of the defendants executed the official bond; the defendant William Haseleu, the ex-treasurer signing as principal, and defendants Beckman and Kohan signing as sureties. The allegations contained in the first six paragraphs of the complaint, and which are expressly admitted to be true by the defendants' answer, are, in substance, as follows: The plaintiff was at the time in question, and is, a duly organized school township of La Moure County; that defendant Haseleu, after being elected qualified for the office of treasurer of said school township in July, 1883, by taking the required official oath and giving said official bond; that Haseleu entered upon the duties of his office, and was treasurer of the plaintiff at the time the school bonds hereafter referred to were voted, executed, and delivered; that at a meeting of the school township held in September, 1883, it was decided by a majority of the electors that said school township should, for the purpose of building a school house, issue two bonds of $ 500 each, bearing 7 per cent. interest; that thereafter, and on the 28th day of September, 1883, the school board of said school township, (which board was wholly composed of the three defendants,) in pursuance of the vote caused to be executed and did execute and did issue two separate school bonds of said school township, each of said bonds being for the sum of $ 500, and bearing 7 per cent. interest per annum. Paragraphs 7, 8, 9, 10 and 11 of the complaint are as follows: "(7) That both of such school bonds, each being for the sum of five hundred dollars, and of the value of five hundred dollars each, were placed in the hands and custody of William Haseleu, the treasurer of said school township, for the purpose of negotiation and sale, and that said William Haseleu did negotiate and make sale of said two school township bonds with C. T. Ingersoll for the whole sum of nine hundred and fifty dollars cash. (8) That on the 24th day of June, 1884, the term of said office of said William Haseleu expired as treasurer of said school township, and one Lewis M. Olson immediately succeeded him, the said William Haseleu, as treasurer of such school township, and received from his predecessor, the said William Haseleu, the books and papers belonging to his said office; but that the said William Haseleu neglected and refused to turn over to him, the said Lewis M. Olson, and to deliver up to him, the two school bonds heretofore described, or to turn over and deliver up to him, the said Lewis M. Olson, the moneys for which said described school bonds were sold, and neglected and refused to account for said bonds or their proceeds, or any part thereof, except the sum of fifty dollars. (9) That the said Lewis M. Olson, the school township treasurer who immediately succeeded the said William Haseleu as treasurer, repeatedly demanded of the said William Haseleu the above described school township bonds, or their value, less the fifty dollars accounted for by the said William Haseleu, but that the said William Haseleu has all the time refused to turn over to him, the said Louis M. Olson, the said school township bonds or their value, and has refused in every way to account for their value or for the said bond, except as herein stated, and still refuses and neglects to account for them or for their value, or any part thereof, except the fifty dollars herein mentioned. (10) That the said Lewis M. Olson was treasurer of said school township for the five years next succeeding his first taking possession of such office on the 27th day of June, 1884, and that he was succeeded in said office by Gustave Papenfuss, who is now the duly elected and qualified treasurer of said school township. (11) That by reason and means of the facts herein stated that said William Haseleu and his co-defendants are indebted to the plaintiff herein, the said Prairie school township, in the sum of nine hundred dollars, and interest thereon from the 27th day of June, 1884, at the rate of seven per cent. per annum, for which amount and costs of this action plaintiff asks judgment against said defendants."

For answer to the complaint defendants say: "(1) That they admit all the allegations contained in paragraphs numbered 1, 2, 3, 4, 5, 6, and 10 of plaintiff's complaint. (2) That they deny that the school bonds described in paragraph 6 of plaintiff's complaint were ever placed in the hands of the defendant William Haseleu, treasurer as alleged; and further deny that the said bonds were sold by the said William Haseleu, treasurer, to one C. T. Ingersoll, for the sum of nine hundred and fifty dollars cash, as alleged; and further deny that said bonds were ever sold or negotiated at any time or place by the said William Haseleu, treasurer, for the sum alleged in paragraph 6, or for any other sum whatever. (3) That they specifically deny all the allegations contained in paragraph 8 of plaintiff's complaint except as to the date on which defendant's (William Haseleu's) term as treasurer expired, and the name of the person succeeding him as such school treasurer. (4) That they specifically deny each and all of the allegations contained in paragraph 9 of plaintiff's complaint. (5) That they deny that they are indebted to the plaintiff in the sum of nine hundred and fifty dollars and interest, as alleged in paragraph 11 of complaint, or that they are indebted to plaintiff in any sum whatever. (6) The defendants for further answer and defense to plaintiff's complaint, say that the cause of action therein stated did not accrue at any time within six years next before the commencement of plaintiff's action thereon. Wherefore defendants demand judgment for costs."

There was a jury trial, and the verdict and judgment were for the defendants. The proceeding had at the trial, embracing the evidence and rulings thereon and the instructions given to the jury, were brought up on the record. A motion for a new trial was denied. Plaintiff assigns error in this court upon certain rulings of the trial court made upon the admission of evidence, and upon certain instructions of the court given to the jury; but, in the view which we have taken of the whole case as presented by the record, we deem it unnecessary to specifically pass upon plaintiff's assignments of error. If the District Court did err in its rulings and instructions which are assigned as error the result would not be different, as we have concluded, upon the conceded facts and undisputed and competent evidence in the record, that the plaintiff cannot recover in this action, and hence that the judgment must be affirmed. Paragraph 6 of the complaint, the averments in which are expressly admitted in the answer, alleges, in substance, that the defendants at the time in question constituted plaintiff's school board; and that the defendants, acting as board, executed and issued two $ 500 7 per cent. bonds, pursuant to a vote of the electors directing such bonds to issue for the purpose of building a school house. The execution and issuing of the bonds by the school board being admitted, it becomes of importance to inquire when, where, and to whom such bonds were issued and delivered by the school board. Upon this vital feature of the case issue is squarely joined. The complaint (paragraph 7, supra) alleges in substance that "both of such school bonds were placed in the hands and custody of William Haseleu, the treasurer of said school township, for the purpose of negotiation and sale; and that said William Haseleu did negotiate and make sale of said two school township bonds with one C. T. Ingersoll for the whole sum of nine hundred and fifty dollars." It is admitted that Haseleu, upon demand therefor, has neglected and refused to turn over the bonds or their proceeds to his successor in office, and has wholly failed to account for either the bonds or their proceeds, except for the sum of fifty dollars which was paid over to the treasurer when the bonds were issued, and has been properly accounted for; and also for a certain bill of lumber to the amount of $ 216, which has been received by the plaintiff on account of the two bonds, and which has been accounted for to the plaintiff. The failure to turn over the bonds of their proceeds, except as above stated, constitutes the alleged breach of the condition of the official bond upon which the plaintiff bases its rights of action.

At the trial the plaintiff rested its case upon the admissions made in defendants' answer, and upon the testimony, oral and written, set out hereafter. Lewis M. Olson testified substantially as follows: "My name is Lewis M. Olson. Am a farmer. Was treasurer of Prairie school township at one time. Know the defendant William Haseleu. I became treasurer June 27th, 1884. I succeeded Mr. Haseleu, the defendant in this case. Mr. Haseleu did not turn over to me the bonds of Prairie school township of $ 500. He turned over a receipt. He never turned over any money as realized from such bonds. [Paper shown witness.] That is the receipt and paper. I received that paper from the defendant Mr....