Town of Hudson v. Miles
| Decision Date | 19 May 1904 |
| Citation | 71 N.E. 63,185 Mass. 582 |
| Parties | TOWN OF HUDSON v. MILES et al. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Ralph E. Joslin, for plaintiff.
Louis C. Southard, for defendants Geo. P. Keith et al.
This is an action on a bond dated July 1, 1899, given by a collector and 20 sureties. The bond recites that the defendant Miles has been elected collector of taxes of the plaintiff town for the current year, has accepted and been duly sworn, and is conditioned that he 'shall, as collector of taxes as aforesaid, faithfully collect, account for, and pay over all moneys which he shall be legally required to collect as collector of taxes as aforesaid, and shall faithfully discharge all the other duties of said office during the time he shall hold said office under said election.' The case came on for trial before a jury. Under the direction of the presiding judge a verdict was entered for the plaintiff. The case is here on report which provides that, if the rulings made at the trial were right, judgment is to be entered on the verdict, and execution is to issue for $9,800.10, with interest from August 24, 1901, with costs.
We are of opinion that the rulings made at the trial were right. It appeared in evidence that the defendant Miles, the principal named in the bond now in suit, was elected collector of taxes for the years from 1893 to 1900, inclusive. Prior to 1896 he had given bond with individual sureties, and in 1897 and 1898 a surety company went surety for him on his bond. After Miles' election in March, 1899, Miles was asked by the selectmen to furnish his bond. They learned in that connection that he intended to furnish a surety company as surety, but that he had difficulty in procuring one to go on his bond. In July the assessors were ready to commit their warrant to the collector. On July 18th Miles gave a bond with the defendant Apsley and the defendant Blake as sureties. This was given in pursuance of a letter written by Apsley, in which he stated that Miles was expecting to give a bond with a surety company as surety; that there was a delay in procuring the surety company; and that he would be liable until such a bond was given. The bond given July 18th in pursuance of this letter was in the same form as the bond sued on. This bond was approved by the selectmen on July 18th, and the warrant for the taxes was forthwith committed to Miles by the assessors. After this bond was given, Miles procured the defendants other than himself to sign a paper agreeing to sign his bond as collector 'if twenty names are secured.' Twenty names were secured, and the bond sued on was executed by the 20 as sureties, and the bond was approved by the selectmen September 22, 1899. Miles, together with the defendants Apsley and Blake, understood when they executed the bond on July 18th that as soon as possible a bond with a surety company as surety was to be procured, and 'filed in place of' the one executed by them and approved by the selectmen on July 18th, and that bond, by vote of the selectmen on February 6, 1900, was delivered to the defendant Apsley. In January, 1901, it was learned by officials of the town that the defendant Miles had been guilty of wrongdoing and he was arrested on January 28th of that year. All money collected and paid over by Miles while collector for 1899 was deposited by him in a bank to the credit of the treasurer of the town. When he deposited money he made a deposit slip in duplicate. One was returned to him after being verified by the cashier of the bank, and the other was retained by the bank. The bank made a memorandum of the amount, but not of the items, of the deposit, and sent it to the town treasurer. On the deposit slip was stated the year to which the deposit was to be applied, and the names of the drawers of the checks deposited. Miles' method was to withhold money or checks collected by him, and to cover deficits so created with money collected upon the levy of a later year. His failure to turn over money collected extended throughout the whole period from 1894, and the total of his deficits increased steadily. It was shown that prior to July, 1899, the chairman of the selectmen called on the officers of the surety company which had gone surety on Miles' bond for the years 1897 and 1898, and 'informally reported to the other selectmen and the defendant Apsley what he was told as their reasons for declining further to act as surety or to become surety.' The defendants then offered to show 'that the surety companies stated to Mr. Tower, the chairman, that they had investigated Mr. Miles' character and habits; that there was a woman mixed up in the case; and on account of his bad reputation they refused to go on his bond, giving ostensibly that they did not wish to go on collectors' bonds, but the real reason was as given to Mr. Tower.' The first exception is to the exclusion of this evidence.
To make this admissible, the defendants must make out that this information, which came to the selectmen by its being 'informally reported' to them by the chairman, was information coming to persons whose knowledge is the knowledge of the plaintiff town (see Lee v. Munroe, 7 Cranch, 366, 3 L.Ed. 373; Hawkins v. United States, 96 U.S. 689, 691, 24 L.Ed. 607), and information which came to them in such a way that the town was chargeable with it, as to which see Sooy v. State, 41 N. J. Law, 394, 400. However these questions should be decided, we have found no case which goes so far as we are asked to go in the case at bar. It may be taken to be settled that, if it is known to the obligee of a bond that the principal in the past has been guilty of irregularities in respect to the duties for the faithful performance of which in the future the bond is given, a failure of such an obligee to disclose that fact is a defense to the liability of the surety. Phillips v. Foxall, L. R. 7 Q. B. 666; State v. Sooy, 39 N. J. Law, 135. The ground on which this defense is made out has been stated to be that in such a case fraud is made out (Lee v. Jones, 17 C. B. N. S. 507); in other cases that there is a concealment of facts which the surety has a right to know (Railton v. Mathews, 10 Cl. & F. 934, 943). But, whichever is the ground for the defense, it does not extend, in our opinion, to a case where the information which has come to the obligee of a bond of a collector of taxes is no more definite than 'that there was a woman mixed up in the case,' and especially when the information which has come to the obligee does not rise higher than hearsay or rumors, as to which see State v. Atherton, 40 Mo. 209, 215, 217.
Evidence that $421.67 of the sum found due to the plaintiff was collected between July 18th and September 22d was rightly excluded. The bond is in terms given for the faithful discharge of his duties for the whole term. In such a case the sureties are liable for sums received during the term in question, although received before the bond was given. Hatch v. Attleborough, 97 Mass. 533.
The third exception is to the refusal of the presiding judge to rule 'that the power of the selectmen to accept and approve a bond of the collector for the year 1899 was exhausted by the approval of bond Exhibit C,' and 'that the bond sued upon was invalid and inoperative, and to direct a verdict for said defendants.' The defendants Apsley and Bradley did not join in this respect. It is true, as the defendants contend, that until the bond of the collector was approved by the selectmen under Rev. Laws, c. 25, § 77, the tax list and warrant could not be transmitted to the collector (Rev. Laws, c. 12, § 67), but it does not follow that after that had been done a bond could not be given at common law. We...
To continue reading
Request your trial