Stearnes v. Edmonds

• Decision Date: 07 November 1914
• Docket Number: 713
• Citation: 189 Ala. 487,66 So. 714
• Parties: STEARNES et al. v. EDMONDS.
• Court: Alabama Supreme Court

66 So. 714

189 Ala. 487

STEARNES et al. v. EDMONDS.

No. 713

Supreme Court of Alabama

November 7, 1914

Appeal from Circuit Court, Marshall County; W.W. Haralson, Judge.

Action by Mat Edmonds against J.B. Stearnes and others, sureties on his bond as Deputy Tax Collector. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

The complaint is as follows:

Plaintiff claims of defendants $5,000 as damages for the breach of the condition of a bond made by defendants to one J.F. Price, now dead and not sued, on October 6, 1905, in the said sum of $5,000, with conditions. The condition of the above obligation is such that, whereas the above-bound J.B Stearnes was on August 1, 1905, appointed deputy tax collector of Marshall county, now, if the said J.B. Stearnes shall discharge faithfully the duties of such office during the time he continues therein, or discharge any of the duties thereof, then the above obligation to be void; otherwise to remain in full force and effect. And plaintiff avers that the condition of the said bond has been broken in this: That defendant J.B. Stearnes, acting as such deputy tax collector under said bond and appointment by this plaintiff, who was then and there tax collector for Marshall county, one of the counties in the state of Alabama, for the collection of taxes of the years 1906, 1907, and 1908, and undertaking to collect the taxes for said year, failed to collect all of the taxes due, and caused plaintiff, as tax collector of Marshall county, to have to pay to the state of Alabama and the county of Marshall a large sum--to wit, $5,000--and also collected large sums of money due the state of Alabama in the county of Marshall, together with large sums of fees and costs, which he, as such deputy tax collector, was in duty bound to pay over to plaintiff as tax collector of Marshall county, and which he has failed and refused to do.

The demurrers to the complaint having been overruled, the case was submitted to the jury on pleas of the general issue recoupment, and release, and there was verdict and judgment for plaintiff.

At the first return term in 1911 the defendant moved the court to require plaintiff to furnish to him a bill of particulars showing the several matters with which plaintiff would seek to charge defendant at the trial, reciting that these transactions covered a period of three years, and defendant was in ignorance as to the items complained of. This motion was overruled. According to the testimony of both parties defendant Stearnes was employed by plaintiff, Edmonds, in 1905 to assist him (the tax collector of Marshall county) to collect the taxes. It is without dispute that thereafter until Edmonds' term of office expired in 1909, Stearnes served as deputy tax collector, collecting most of the taxes, and disbursing the funds which were deposited in his name as deputy tax collector, keeping the books, making the settlement, and practically running the office for his principal. The principal matter of the suit was whether defendant had accounted to plaintiff for all moneys received by him, and in particular the amounts collected as the collector's commission. The plaintiff introduced in evidence a memoranda statement given him by defendant in August, 1909, reciting that the commissions collected for the years 1906, 1907, and 1908 amounted to $2,971.72, and were charged on the books only to the extent of $1,758.55. The evidence for defendant tended to explain this discrepancy, and to show that he had accounted for all moneys received by him. It seems, however, that the admission imparted by this memorandum supplied the chief basis for the verdict of the jury, which was for $1,426.27. The first breach assigned in the complaint was sought to be supported by evidence that defendant, in reporting delinquent taxes to the probate judge, omitted from his docket the taxes due from the Humes estate for the years 1906 and 1907, amounting to $300, whereby these taxes were not collected, and, in consequence, were paid by plaintiff out of his own pocket when he settled up his official affairs with the state. Plaintiff testified that defendant had agreed to stand for these taxes; that he had told defendant to collect them; and that defendant said he would carry it over and pay it himself. Defendant was during that time an agent for Humes for the sale of this land. Defendant denied making any such agreement or promise, and affirmed that the Humes lands were omitted from the delinquent report with the knowledge and upon the request of plaintiff, who was then negotiating for the purchase of a part of the Humes land. The other matters sufficiently appear.

Street & Isbell, of Guntersville, for appellants.

John A. Lusk & Son, of Guntersville, for appellee.

SOMERVILLE J.

One who is appointed deputy county tax collector, and in that capacity "undertakes to collect the taxes," is not liable to his principal for his failure to collect all the taxes, unless his failure is due to some fault of willfulness or negligence in the discharge of his duties. He is not, in the absence of an agreement to be thus bound, a guarantor of success. Hence, in an action on such deputy collector's bond against the deputy and his sureties, the bond being conditioned upon the faithful discharge of the duties of the office, an assignment of breach that such deputy "failed to collect all of the taxes due, and caused the plaintiff, as tax collector of Marshall county, to have to pay to the state of Alabama and the county of Marshall a large sum, to wit, $5,000," is insufficient upon apt demurrer. A breach must be so assigned as to show that the contract has been broken, and that the plaintiff has a cause of action. Watts v. Sheppard, 2 Ala. 425...