Township of Otsego Lake v. Kirsten

• Decision Date: 19 October 1888
• Citation: 72 Mich. 1,40 N.W. 26
• Court: Michigan Supreme Court
• Parties: TOWNSHIP OF OTSEGO LAKE v. KIRSTEN ET AL.

40 N.W. 26

72 Mich. 1

TOWNSHIP OF OTSEGO LAKE v. KIRSTEN ET AL.

Supreme Court of Michigan

October 19, 1888

Error to circuit court, Otsego county; ROBERT J. KELLY, Judge.

Assumpsit by the township of Otsego Lake against Adelbert Kirsten, township treasurer, and Hyman Joseph and De Witt Wilson, sureties on his official bond, for an alleged defalcation of $1,037.71. There was a judgment for plaintiff and defendants brought error.

CHAMPLIN J.

Adelbert Kirsten was township treasurer of the town of Otsego Lake. To qualify himself to act he gave to the township a bond, as required by law, with Hyman Joseph and De Witt Wilson as sureties. At the close of his official term the township board examined, and audited his accounts as such treasurer and found that he was indebted to the township in the sum of $1,037.71. The township board immediately notified the sureties of this fact, and that the township would hold them responsible on the treasurer's bond. The board commenced their examination on the 15th of April, 1887 and concluded it on the 18th. On the 16th Kirsten secured his sureties by a bill of sale on his stock of goods. The money found due the township not having been paid, this action was brought upon the township treasurer's bond. The surety Hyman Joseph and the principal, Adelbert Kirsten, defend on the ground that, after the amount of the defalcations was ascertained, the township board settled with the sureties, and took their several and respective promissory notes in full of all claim against them. These defendants appeared by separate attorneys, and pleaded separately.

On the trial of the cause the plaintiff introduced the books of the township treasurer, from which it appeared that he was indebted to the town in the sum stated. There does not appear to have been any conflict in the testimony respecting this fact, and it may be regarded as undisputed. It was proved by the record and by the testimony of the witnesses who examined the accounts. This testimony was competent, and there was no error in overruling the objections of defendants' counsel to the introduction of the township treasurer's books in evidence, nor in permitting the supervisor, who was a member of the township board, and who took part in the examination of the books and vouchers, to answer the question, "What sum was found to be due from Kirsten to the township?" The township board and Kirsten met for the purpose of looking over his accounts, and to ascertain how much, if any, was due to the township, and there was no valid objection to his stating what sum they found to be due. After the plaintiff rested his case, the counsel for defendants, to maintain the issue on their part, then offered in evidence the record of the proceedings of the plaintiff township board, as recorded on pages 102 and 103 of their record being the proceedings of a meeting of that board held on April 20, 1887, for the purpose of showing that on that day the said township board settled all claims of the township against defendant Adelbert Kirsten, as its treasurer, and against defendants Hyman Joseph and De Witt Wilson, as sureties on his official bond, both arising on said bond, and otherwise, and then and there accepted the promissory notes of said Joseph and said Wilson, due in one year thereafter, whereby all action upon...