Thacker v. Fidelity & Deposit Co. of Maryland
| Decision Date | 20 September 1939 |
| Docket Number | 21. |
| Parties | THACKER v. FIDELITY & DEPOSIT CO. OF MARYLAND et al. |
| Court | North Carolina Supreme Court |
Civil action against the sureties on the official bonds of the Clerk of the Superior Court of Rockingham County to recover balance due on an amount received by the clerk under color of his office, which, on demand, has not been paid.
The parties waived trial by jury and the cause was tried upon stipulations of fact and such additional facts as the Court might find from the evidence offered, it being agreed that the Court should hear the evidence and find additional facts not incorporated in the stipulations.
From the stipulations and the facts found by the Court the following facts appear.
On 7 February, 1910, there was paid into the office of the Clerk of the Superior Court of Rockingham County the sum of $3,226.32 to the use of George R. Thacker, who was then sui juris. This fund remained in the hands of the clerk and upon the appointment of Major Thomas Smith, as clerk, to fill an unexpired term, he received from his predecessor clerk, by virtue and under color of his office, $4,489.59, representing the original sum with accrued interest. On 16 July, 1926 Smith, clerk, loaned said money, together with other funds to the Farmers' Exchange, Inc. Said loan was evidenced by a promissory note payable to him, as clerk, and was secured by a trust deed on real estate. The loan was made without the knowledge of George R. Thacker and without any order of Court authorizing the same. No portion of the principal or interest was paid by the Farmers' Exchange, Inc., which executed an assignment for the benefit of creditors 24 May, 1928. The deed of trust was thereafter foreclosed and plaintiff received out of the proceeds of sale, through the clerk $2,137.29. No other funds are available out of the assets of the Farmers' Exchange, Inc. There is now due on said fund $1,995.46 with interest from 20 February, 1937, and interest on $4,989.59 from 30 March, 1936, for which judgment has been rendered against Smith, clerk. The plaintiff, administrator made no demand upon the clerk for the payment of said sum received by him until 30 March, 1936. Demand was then made and the clerk failed to pay any part of said sum and has paid no part thereof except the sum of $2,137.29, representing proceeds of the foreclosure sale. Thus, the estate of George R. Thacker has suffered a loss in the amount represented by the judgment against the clerk.
Major Thomas Smith was duly appointed and qualified as Clerk of the Superior Court of Rockingham County 5 December, 1925, for an unexpired term of one year. Having been re-elected from time to time to succeed himself he qualified for, and served during, the terms from December, 1926, to December, 1930 from December, 1930, to December, 1934; and from December, 1934, to December, 1938. Apparently he is acting as clerk for the term beginning in December, 1938.
For the original one year term, beginning December, 1925, said clerk gave official bond in the sum of $10,000 with the defendant, Fidelity & Deposit Company of Maryland, as surety. For the term beginning on the first Monday in December, 1926, he gave his official bond in the sum of $10,000 with the defendant, American Surety Company of New York, as surety. For the term beginning the first Monday in December, 1930, he gave his official bond in the sum of $10,000 with the National Surety Company, as surety. For the term beginning the first Monday in December, 1934, he gave his official bond in the sum of $10,000 with the National Surety Corporation as surety.
The said clerk at no time since his original induction into office made the reports required by law to the Board of Commissions of Rockingham County, and he has failed to give an intemized statement of funds held, with detailed information required by statute. He has failed to keep any book, record or list of investments, but the evidences of various investments made by him were placed in a folder and kept locked in a safe in the vault in his office. The trust fund ledger kept by him, which included the fund due to George R. Thacker, was kept in a vault in his office open to the public.
In investing the funds held to the use of plaintiff's intestate and in doing all acts and things concerning the same, the clerk acted in good faith and there is no evidence of any misappropriation or dishonesty on the part of the clerk.
At the time of the original deposit of said fund in the hands of the clerk in 1910 to the use of George R. Thacker, the said Thacker had knowledge thereof. From that date until the time of his death, neither the plaintiff's intestate nor anyone for him made any demand upon the clerk for an accounting. The plaintiff made the first demand 30 March, 1936.
George R. Thacker, plaintiff's intestate, died 1 September, 1934, and the plaintiff, Albert L. Thacker, qualified as administrator of his estate 1 October, 1934, and is now acting as such. In the course of the administration of said estate plaintiff made demand upon the clerk for an accounting and for the payment of the sum due the estate. Thereafter, plaintiff obtained judgment against the clerk for the balance due, after crediting the amount received from the proceeds of the foreclosure sale. The clerk having failed to account and pay over the amount due, the plaintiff instituted this action 31 January, 1939.
Upon the facts stipulated and found by the Court, the Court entered judgment: (1) That no default or loss occurred during the term covered by the bond executed by the defendant Fidelity & Deposit Company of Maryland; (2) that no default or loss occurred during the term covered by the bond executed by the defendant, American Surety Company of New York; (3) that if default or loss occurred during the term covered by either bond the facts constituting the fraud or mistake were not discovered prior to 30 March, 1936, the date of the demand; (4) that from an examination based exclusively upon the records in the office of the Clerk of the Superior Court, neither the plaintiff nor his intestate, by the exercise of due diligence and reasonable prudence, could have...
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