Town of Belton v. American Employers Ins. Co. of Boston, Mass.
| Decision Date | 03 February 1942 |
| Docket Number | 15366. |
| Citation | 18 S.E.2d 612,199 S.C. 88 |
| Parties | TOWN OF BELTON v. AMERICAN EMPLOYERS INS. CO. OF BOSTON, MASS. SAME v. GLENS FALLS INDEMNITY CO. OF NEW YORK. |
| Court | South Carolina Supreme Court |
J M. Nickles, of Abbeville, and Watkins & Prince, of Anderson, for appellants.
Leon L. Rice, of Anderson, for respondent.
Dr. R L. Parker, deceased, was city clerk and treasurer of the town of Belton from 1930 until March 15, 1939. The appellant American Employers Insurance Company, was surety on the bond of the clerk and treasurer for the years 1930-1934 inclusive; and the appellant, Glens Falls Indemnity Company, was surety on his bond for the years 1935-1939, inclusive.
These actions were brought separately by the town of Belton against the sureties on the bonds of the clerk and treasurer, the complaint in each case alleging that an audit of the books kept by him showed that the town had lost revenue due to his failure to well and truly perform the duties of his office, as required by the ordinances of the town and the laws of the State. Judgment was prayed against each surety for losses accruing during the periods covered by the respective bonds. By consent the cases were heard together, and, after they were referred to a special referee to take and report the testimony, resulted in a judgment of the Circuit Court in favor of the plaintiff against American Employers Insurance Company for $795.37, and against Glens Falls Indemnity Company for $1,645.59. From these judgments this appeal is taken.
The appellants contend that there can be no recovery under the pleadings in this case, because the plaintiff failed to offer testimony of some ordinance of the town prescribing and defining the functions and duties imposed by law upon the office of the clerk and treasurer. Before passing upon this question a recital of some of the evidence should be given.
The loss of revenue suffered by the town of Belton was shown by the audit to have resulted from the alleged negligent failure of the clerk and treasurer to collect from water subscribers each month the proper amounts charged against them, and his failure to collect from certain businesses the full amount of license fees required. A bill of particulars, the items of which were summarized from the audit made by a certified public accountant, was served upon the defendants prior to the taking of the testimony, and was later introduced in evidence. The total alleged loss in revenue to the town of Belton is thus shown therefrom:
Erroneous water billings .................. 15.75
Rent unaccounted for ...................... 12.50
Errors in water receipts .................. 1.30
Allowance for overage in cash $ 9.65
Net shortage 19.90
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One or more of the foregoing items was disallowed by the Circuit Court, but as to these items no appeal has been taken by the town of Belton.
The appellants took the same position before the Circuit Court that they now take, that is, that there was no testimony fixing and determining the duties of the clerk and treasurer, and for that reason the actions for the breach of the bond should fail. On this question the Circuit Judge held:
But appellants submit that the error in this holding lies in the fact that the plaintiff offered no testimony of any duties which were within the reasonable contemplation of the parties, or such duties as are usually incident to and within the scope of the duties of the clerk and treasurer; that, in effect, the Court took judicial notice of the functions of such office. We think that the evidence fully supports the lower Court.
While it appears that no ordinance of the Town of Belton was formally introduced in evidence, we think the record amply shows, without objection, the duties which were required of the clerk and treasurer, the violation of which constituted the basis of the actions. Mr. J. F. Burgess, the mayor pro tem, of the town of Belton, testified that when the audit was proceeding, he met with the town council at the home of Dr. Parker, the clerk and treasurer, and that Dr. Parker made the admission, not only once but several times, that he had been woefully negligent in his collection of water rentals, taxes, and licenses. It appears from the cross examination of this witness that the clerk and treasurer customarily read his report of collections and disbursements at the monthly council meetings, and likewise that he submitted to council an annual report of receipts and disbursements.
The testimony of Mr. H. B. Croxton, the certified public accountant who made the audit of the books of the clerk and treasurer, throws light upon the question concerning the duties of the clerk and treasurer. In his testimony he states that the books and records from which he made the audit were in the town hall; they were marked with the words "Town of Belton," and were turned over to him by Dr. Parker, who was present when the audit was commenced; that Dr. Parker helped him to get started, and that the audit was made up from the records and entries in these books. Mr. Croxton further testified:
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