Tinkler v. Powell
| Decision Date | 05 October 1915 |
| Docket Number | 801 |
| Citation | 23 Wyo. 352,151 P. 1097 |
| Parties | TINKLER v. POWELL |
| Court | Wyoming Supreme Court |
ERROR to the District Court, Sweetwater County; HON. DAVID H CRAIG, Judge.
The material facts are stated in the opinion.
Affirmed.
E. D MacDougall, for plaintiffs in error.
The evidence is insufficient to support the verdict. To arrive at a general finding for defendant it was necessary to find that defendant disbursed upon written orders $ 3,388.50 of seriously disputed disbursements, which is contrary to the evidence. The treasurer's books were not audited. There is nothing to indicate an audit, except the signing of the three names of the committee without recommendations approval or disapproval. This is an action for an accounting. In view of the incomplete condition of defendant's books, instruction number four has no support in the evidence and seems to pronounce as law an ambiguous and inapplicable generality; instruction number five is erroneous in that it virtually directs a finding against the plaintiffs. $ 15,828.54 of checks were authorized to be issued. The evidence shows the issuance of checks $ 3,388.50 in excess of that sum. This is an action ex contractu. A plaintiff may waive a tort and sue in assumpsit. (4 Cyc. 331, 332; Vance v. Mottley, 92 Tenn. 310; 21 S.W. 593.) When a question arises between a trustee and a beneficiary, the trustee assumes the burden of proof. (Jones on Evidence, Sec. 190.) Instruction number 6 is erroneous, as it indicates that the action was one against the bank, where the account was carried. Requested instructions numbered eight and nine should have been given by the trial court. It is admitted that defendant received $ 23,789.49 of plaintiffs' funds in addition to $ 2,000.00 in certificates of deposit. It is also admitted that defendant disbursed $ 15,828.54 and has accounted to the plaintiff for the additional sum of $ 7,040.95 less $ 477.50 of his checks cashed after his withdrawal from office, leaving a balance of $ 3,388.50 in cash unaccounted for. Defendant failed to show authority for the issuance of checks covering the excess. The verdict being unsupported should be set aside.
N. R. Greenfield, for defendant in error.
While the proceedings of plaintiffs in error are defective, we are content to have the matter disposed of on its merits. The argument set forth in plaintiffs' brief consists very largely of questions, which we do not feel called upon to answer. The authorities cited are not pertinent to the questions involved in the case, if indeed it can be said that any questions are involved in the entire proceeding. Considering what is admitted by the pleadings there remains but $ 2,911.00 in dispute. The books, accounts and conduct of defendant, as treasurer of the union, were fully approved by auditing committees of the union. All checks issued by defendant were drawn in accordance with instructions issued to the bank by the union. The receipts and disbursements as shown by the evidence show an exact balance. The time certificate of deposit of $ 2,000.00 was received by defendant when he assumed office and by him surrendered to his successor. The case was apparently prosecuted through malice. It was brought without previous investigation. The instructions given by the court were not erroneous. The instructions refused by the court placed the burden of proof upon defendant and hence were properly refused. The judgment of the lower court should be affirmed and plaintiffs should be required to pay the costs of this proceeding.
E. D. MacDougall, in reply.
Under disbursements counsel has included $ 2,000.00 of certificates of deposit surrendered to defendant's successor in office. Defendant surrendered $ 5,000.00 of such certificates to his successor, of which the bank charged $ 3,000.00 with which certificates were purchased against the union, as disbursements, and the union gave defendant credit for the whole $ 5,000.00 of time certificates at the time of his withdrawal from office. This is a double charge of the $ 3,000.00 against the union. Funds left in the bank by defendant at the time of his withdrawal from office do not represent the situation or the real credit to which defendant was entitled for disbursements, in view of the fact that there were outstanding checks issued by defendant aggregating $ 477.50, a point ignored by counsel for defendant.
This action was brought by Robert Tinkler, as the presiding officer, officially known as president of Local Union No. 2616, The United Mine Workers of America, and for the benefit of the said local union, an unincorporated association of mine workers, located in the Town of Superior, in Sweetwater County, in this state, to recover from the defendant, William H. Powell, as a former treasurer of said local union, the sum of $ 5,654.25, with interest, alleged to be due for money received by him as such treasurer and which, it is alleged, he had failed and refused to pay over to his successor in office or to the said local union. There was a jury trial in the district court resulting in a verdict and judgment in favor of the defendant, and the plaintiff brings error.
The only question to be considered is whether the evidence is sufficient to sustain the verdict, for no other error is properly alleged or assigned in the motion for new trial or petition in error. By plaintiff's admissions on the trial as to the amount received by the defendant as treasurer and the amount turned over to his successor in office, the sum claimed was reduced to $ 3,388.50. It is admitted by the pleadings that the defendant held the office aforesaid from January 1, 1911, until July 2, 1912, and that he received from his predecessor in office the sum of $ 5,408.28, but the answer alleges as to the sum so received that $ 3,408.28 was subject to the payment of outstanding checks issued by his predecessor in office, and that there were turned over to him time certificates of deposit in different banks in the sum and of the value of $ 2,000. And it was established by the evidence that he received from his predecessor in office two time certificates of deposit for $ 1,000 each, and that the said sum of $ 3,408.28 was on deposit in open account in a bank at Superior subject to check under the rules of the union and its instructions to the bank, which account we understand from the testimony was kept in the name of the said local union. It is alleged in the petition that the other receipts of money by the defendant as treasurer amounted to $ 21,381.21, but the answer alleges that such additional receipts amounted only to the sum of $ 20,381.21, and on the trial that averment of the answer was admitted by the plaintiff. Hence upon the trial the total amount of money received by the defendant was admitted to be $ 25,789.49, including $ 2,000 represented by time certificates of deposit. It is alleged in the petition that when the defendant retired from the office he turned over to his successor moneys of the local union amounting to $ 5,306.70, but the answer alleges that defendant delivered to his successor the sum of $ 7,049.95, consisting of certificates of deposit in the amount and of the value of $ 5,000 and cash in banks in open account and subject to check amounting to $ 2,049.95, and on the trial that part of the answer was admitted, and the fact was also established by the evidence. These admissions left as the only matter in dispute the amount of the defendant's disbursements for which he was entitled to credit.
The petition alleges that it was defendant's duty as treasurer aforesaid to receive and safely keep all moneys belonging to the local union, and to pay out and disburse the same upon written order of the local union executed by the financial secretary, and to turn over to the union or his successor in office all of said moneys not so paid out; and that he paid out and disbursed, upon written orders aforesaid, only the sum of $ 15,828.54. The answer alleges that the defendant faithfully and honestly performed all of his duties, that he safely kept and accounted for all moneys received by him belonging to the local union, and only disbursed the same upon written order of the proper officers, and paid over to his successor all moneys received by him and not so disbursed, and, specifically, that he disbursed and caused to be paid out upon proper written orders the sum of $ 21,739.54, three thousand dollars of which sum was expended for three time certificates of deposit in various banks for the sum of $ 1,000 each, which said certificates of deposit, together with $ 2,000 in time certificates of deposit received from his predecessor in office, were turned over by him to his successor in office on July 2, 1912. The legal effect of this averment of the answer is that the defendant actually disbursed or caused to be paid out upon proper written orders the sum of $ 18,739.54. The mere changing of the form of the deposit of $ 3,000 of the amount received would not constitute a disbursement, and could not be regarded as such, without the treasurer again being chargeable with the amount as so much money received, for he retained the same, although in the form of certificates of deposit, until the certificates were delivered to his successor in office, when he became entitled to credit for the amount. And he was allowed such credit upon the trial by the plaintiff's admission that the defendant had delivered the certificates to his successor in office and that they were worth their face value.
The difference between the amount of actual disbursements as alleged in the petition and answer respectively is $ 2,911. This amount the plaintiff claims to be due...
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