Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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belonging to the county, from whatever source they may be
derived (id., art 9), and the theory of the law is that the bonds
prescribed for his execution cover all the moneys thus com-
ing into his custody. Had it been the intention of the law to
protect by the bond in question only a portion of the school
fund, it would have so stated By using terms comprehen-
sive enough to embrace the entire fund, it was clearly
intended to include at least all such amounts as were subject
to disbursement by the county commissioners* court. Were
the amounts alleged in this case to have been embezzled
embraced by words of this description ? They consisted of
interest upon notes received for the purchase money of the
four leagues of land granted to Jackson County for school
purposes. If instead of taking notes the county had received
money and exchanged it for bonds, the interest upon these
bonds would, as we have seen, have been available for the
current expenses of the county's free school. The interest
upon the proceeds of these bonds are not, therefore, in con-
templation of law, a part of the permanent school fund, but
of that which is to be used in payment of annual expenses.
In this case it was so treated by the commissioners* court,
and was by them duly transferred to the available fund, and

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202 SIMONS ei al. v. county of jackson.

as such committed to the care and custody of the county
treasurer. It then became his duty safely to keep it and
faithfully to disburse it, and for his default in these respects
we think the sureties upon the bond in question were respon-

If the appropriation of this fund to school expenses made
by the commissioners was unauthorized, we do not see that
suRsnss: lia- this would cxcusc thc bondsmen, for it is well
?^?^ SJ settled that the sureties of an oflBcer intrusted
Sd^'w^tS^ with public funds are liable for his defalcations,
WABBAKT OF ^[jQygjj |.jj^ Hioncys in his charge were collected
and placed there without warrant of law. For instance, the
sureties of a tax collector are responsible for the taxes col-
lected by him, though they were obtained under an illegal
or void assessment. County of Mahaska v. Ing^lls, 14 Iowa,
170; Ford V. Clough, 8 Me. 334; Boehmer v. Schuylkill, 46
Pa. St 452 ; Wylie v, Gallagher, Id. 205.

This, in eflfect, disposes also of the point made that the sure-
ties cannot be held liable for the money recovered in this
suit, for the reason that it did not come into the treasurer's
hands till after the bond was executed. The money was
received during the term of office for which the bond was
given, and it was money which, as we have seen, the law
contemplated should be taken into keeping by the county
treasurer. The condition of the bond including this charac-
ter of funds, it was not imposing a greater burden upon the
sureties than they had agreed to bear, to make them respon-
sible for it.

Numerous cases may be found in the reports of our o\ni
and other States where the sureties upon official bonds have
been held liable for funds received by their principal after
the execution of the bond, which funds it was not at the time
contemplated should come under his charge. Borden v,
Houston, 2 Tex. 594; Houston v. Dwyer, 59 Tex. 113 ; State
V. Kelly, 43 Tex. 667; Broome v. United States, 15 How.
143; United States v, McCartney, 10 Cent. L. J. 113 ; Walker
V. Chapman, 22 Ala. 116.

But we think the court erred in not adjudging interest
upon that amount from January i, 1881, instead of January if
1883. .

The defalcation seems to have occurred in 1880, during

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WOOD V. CUTTER et aL 203

the existence of the bond upon which this suit is founded. It
is only on this supposition that the suit can be maintained
upon the present bond. If it occurred after the term for
which the defendants were sureties, they were not liable;
but the sureties for his next term were alone responsible.
Interest should have been computed from the first of the
year succeeding the default, which was 1881. The judg-
ment will therefore be reversed and rendered for the appellee
for the principal sum recovered below, with interest from
January i, 1 881, and the costs of this court and the court
Reversed and rendered.

Cutter and others.

(138 Massachusetts, 149.)

The school committee of a town, having been required by a vote of
the town to appoint a superintendent of schools, may. after having
elected such superintendent by ballot, reconsider the vote at the same
meeting, and before it has been communicated to the person appointed,
and, at an adjourned meeting, elect another person by a yea and nay

5. Hoar for petitioner.

R. D. Smith & F. C. Nash for respondents.

Holmes, J. — This is a petition for a writ of mandamus to
the school committee of the town of Acton, com- pacts.

manding them to permit the petitioner to perform the duties
and receive the emoluments of the office of superintendent of
schools. The only facts material to our decision are that
on April 7, 1884, the town by vote required the school com-
mittee to appoint a superintendent (Pub. Sts. c. 44, § 43) ;
that, at a meeting of the school committee held the same day,
^ it was voted to proceed to a formal vote for superintendent ;
that a majority of the votes cast were for the petitioner, the
voting being by ballot ; that it was then voted " to reconsider
the last vote for superintendent if they could do it legally :** and
that, at an adjourned meeting, all the members of the board

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204 WOOD V. CUTTER et ol.

being present, Frederic C. Nash had three votes, the other
three members of the board not voting. The votes at this
meeting were yea and nay. Nash was duly notified, and has
since performed the duties of his oflBce.

We are all of opinion that the petitioner shows no right to
the oflSce, and that the writ ought not to issue. This is not
the case of a fluctuating body, like a town meeting, nor is it
one where the law prescribes a particular mode of voting in
the performance of some public duty, as, for instance, the
ballot, where it would be open to question whether the
power to reconsider, if it were held to exist, would not prac-
tically destroy the secrecy intended to be secured. Both
these elements concurred in Putnam v. Langley, 133 Mass.
204, and when it was suggested in that case that perhaps,
after a ballot had been taken and the result in favor of a can-
didate announced and accepted, further action by the same
meeting would be ineflfectual, the suggestion plainly had ref-
erence only to the facts of the case before the court.

Here the mode of voting was determined by the pleasure
elkttiok: m- of the voting body. At the meeting of April 7
coi^raATioN .^ ^^^ ^^^ ballot ; at the adjournment, by yeas and

nays. Under these circumstances, no reason has been sug-
gested to us why this vote should not stand on the same
footing as any other vote of a deliberative body, and remain
subject to reconsideration at the same meeting and before it
has been communicated. It begs the question to say that the
board had once definitively voted in pursuance of the instruc-
tions of the town meeting, and therefore was functus officio^
and could not reconsider its vote. The vote was not defini-
tive if it contained the usual implied condition, that it was
not reconsidered in accordance with ordinary parliamentary
practice, and it must be taken to have been passed subject to
the usual incidents of votes, unless some ground is shown for
treating it as an exception to common rules. Whether the
board could have cut down their powers of deliberation by
communicating their vote before the meeting was closed, or
otherwise, is not a question before us. It is enough to say
that an implied condition is as eflfectual as an express one ;
and that in this case the condition which has been stated
must be implied.
Petition dismissed.

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Troy School Township of Perry County.

{Advance Case, Indiana, June 12, 1885.)

A school trustee who advances funds to pay the teacher accrued wages
may recover the same from the township.

Appeal from Perry circuit court.

Simeon Joseph and Heber y. May for appellant

Wm, Henning for appellee.

Mitchell, C. J. — From the complaint in this case it ap-
pears that Lawrence Kiefer was the trustee of Troy School
Township, in Perry County, in the year 1883; that he had
made estimates of the funds likely to come into his pacts.

hands for tuition purposes, and, relying on such estimates,
he employed competent and licensed teachers for the several
school districts in his township, and entered into written con-
tracts with them at the usual stipulative wages, and that
the number employed was necessary to supply the require-
ments of the school children of the township ; that the several
teachers employed carried out their contracts in good faith,
and taught the township schools in all respects according to
their agreements ; that at the end of the term for which they
were employed the tuition fund, less having been received
through some miscalculation than was expected, having been
exhausted in making proper disbursements therefrom, and
there remaining due the several teachers the sum of $708.96,
the appellant advanced and paid the same out of his own
funds, and that this sum was received by them for their
services ; that he made report of his doings in that regard to
the board of commissioners, who approved the same, and, at
the direction of the board, the county auditor g^ave him a
certificate of the amount found due him from the township,
from which action of the board no appeal has been taken ;
that he has demanded payment from his successor for the
money thus advanced and allowed, who refuses to pay ; that
it was the intention of the several teachers and the trustee,

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at the time he paid them, not to extinguish their claims
against the township, but to transfer to him their rights against
it. To this complaint a demurrer was sustained, and the
sole question is, did it state a cause of action upon which
the plaintiflf was entitled to recover?

Of a case in some respects involving the same principles
an eminent judge said : ** This is an attempt to impale an
honest debt on the sharp points of the law which ought not
to succeed." Heidelberg School District v. Horst, 62 Pa. St

Two grounds are urged as obstacles in the way of the ap-
pellant's right to receive payment of the money advanced by
him for the benefit of the township. It is said (i) that because
he was trustee of the township the payment of its debts was a
voluntary payment, and that a stranger cannot by voluntarily
paying the debt of another maintain against the other assump-
sit for such payments ; (2) that if the payment was not volun-
tary, the trustee could create no obligation against the town-
ship by dealing with himself. The propositions above stated
enunciate sound and salutary principles of law, which are of
binding obligation in all cases in which they apply ; but they
have no application to the case before us.

It is conceded by the demurrer to the complaint that the
TBU8TKK8* Ai>. tcachcrs were hired in good faith, under the belief
TKAcm* i^ that thetutition funds provided would be sufficient
FROM TOWNSHIP, [q^ their payment; that the township had the
benefit of their services and became liable for their wages,
and, having no funds to discharge its just obligation, the ap-
pellant advanced the money out of his own pocket and paid
a debt, the benefit of which the school corporation received.
Under the rulings of this court in Harmony School Tp.f.
Moore, 80 Ind. 276, the township was liable for the services
of its school-teachers, whether it had the funds to pay or not
It was there held that it was no excuse for the dismissal of a
teacher before the expiration of the term for which he was
employed that the fund out of which he was to be paid was
exhausted. This ruling was followed in Harrison School Tp.
V. McGregor, 96 Ind. 185, where it was again held that the
liability of a township to pay its teachers does not depend
upon whether it had the funds for their payment or not.
Quoting from an approved authority, this court said in Bick-

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nell V. Widner School Tp., 73 Ind. 501 : " Persons who had
in any way advanced money to a corporation, which money
has been devoted to the necessities of the corporation, are con-
sidered in chancery as creditors of the corporation to the ex-
tent to which the loan has been expended.*' When a necessity
exists for so doing, and the trustee in good faith advances
money to liquidate a just debt owing by the township for
which it is unquestionably bound, and in the creation of
which it was benefited, no reason is perceived why he should
not be reimbursed as well as a stranger from whom he might
have borrowed the money. Bristol Milling & Manuf'g Co. v.
Probasco, 64 Ind. 406. It can no more be said in such case
that the oflBcer has contracted with himself than in the case
of an agent, whose duty it is to attend to the interests of his
principal, who in an emergency advances money for the
principal's benefit. He has not contracted with himself. He
has done nothing except in the interest of the school town-
ship whose servant and agent he was, and whose advantage
it was his duty to subserve, to advance his money for the
liquidation of its debts on contracts which had been made and
executed. An equitable obligation is thus raised against the
school corporation to pay him the moneys advanced.

In the case of Porter v. Dunlap, 17 Ohio St. 591, one Clark,
engaged in teaching school, was advanced on his wages by
Porter, the treasurer of the school corporation, under an agree-
ment that he should retain out of his wages, when earned, the
amount advanced. It was held that this was a valid assign-
ment in equity, and that a subsequent assignee of Clark could
recover nothing until Porter was reimbursed. The principle
of this case fully sustains the right of the appellant to recover ;
but whether he became the equitable assignee of the claims of
the school-teachers or not, he was entitled to recover for
money paid to he use of the corporation. That a public
oflScer may not contract with himself is not to be doubted ;
but, like any other agent or trustee, he may, within the scope
of his agency, when a necessity arises, advance money to
save his principal or cestui que trust from inevitable loss or
damage, or to pay just liabilities growing out of his agency ;
and for such advances, upon the same principle that any other
agent may be reimbursed, he may be. Story, Ag. § 335. Of
course, a public oflScer, as such, cannot borrow mone}- from

Digitized by


208 BARKER et ol, V. BARROWS.

himself, nor can he be reimbursed for money paid on con-
tracts which he had no authority to make, nor to pay debts
for which the corporation received no benefit, nor for ad-
vances made without a necessity therefor ; but this record
presents no case of the character supposed.

The judgment is reversed, with costs, with instructions to
the court to overrule the demurrer to the complaint, and to
proceed in accordance with this opinion.

Barker et al.



(138 Massachusetts^ 578.)

At the trial of a writ of entry, dated in 1883, it appeared that the de-
manded premises were conveyed by A, in 1829, to the ancestor of the de-
mandant; that in 1837 A conveyed the same premises to the inhabitants
of a school district, " their successors and assigns forever," by a deed
which contained, after a description of the premises, the words " said lot
of land to be used, occupied, and improved by said inhabitants as a school-
house lot, and for no other purpose;'* that from 1837 to 1882 the school
district had the exclusive use of the premises for school purposes, and had
taken exclusive care of it ; and that in 1882 the school district conveyed
the premises to the tenant, the school-house was removed, and the
premises ceased to be used for school purposes. Held, that the demand-
ant's ancestor was disseized in 1837; that the deed to the school district
was in form a deed in fee ; and that the statute of limitations. Pub. Stats.
c. 196, was a bar to the action.

Writ of entry, dated February 15, 1883, to recover a parcel
of land in Attleborough. Plea, nul disseisin. Trial in the
Superior Court, without a jury, before Gardner, J., who re-
ported the case for the determination of this court, in sub
stance as follows :

The demandants oflfered in evidence a warranty deed from
Samual Richards to Elihu Daggett, dated and recorded on
August 15, 1829, of certain land, including the demanded
premises ; also a quit-claim deed from Elihu Daggett to Jesse
F. Richards, the father of the demandants, dated December
29, 1829, and recorded January 2, 1830, which the judge found

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BARKER et al. V. BARROWS. 209

included the demanded premises. The demandants are the
children and only heirs-at-law of Jesse F. Eichards, who lived
in North Attleborough, and died intestate in 1882.

The tenant offered in evidence a deed of the demanded
premises, dated July 3, 1837, and recorded March i, 1843, by
which Elihu Daggett conveyed unto the " inhabitants of
School District No. Four, their successors and assigns for-
«ver," the demanded premises. The deed contained, after the
description of the premises, the words " said lot of land to
be used, occupied, and improved by said inhabitants as a
school-house lot, and for no other purpose." The habendum
of the deed was " to the said inhabitants, their successors and
assigns, to them and their use and behoof forever.*" The deed
also contained full covenants ot seisin, of freedom from incum-
brances, and of warranty.

The tenant also offered in evidence a warranty deed of the
demanded premises, from said school district to the tenant,
dated and recorded on September 20, 1882, which contained
no restrictions as to the use of the lot ; also a deed from Lyman
W. Daggett, heir-at-law of said Elihu, to Handel N. Daggett,
dated September 16, 1882, and recorded September 20, 1882,
conveying all the right, title, and interest of said Lyman in
the demanded premises ; also a deed from said Handel N. to
the tenant, dated September 16, 1882, recorded September 20,
1882, conveying the same right, title, and interest set out in
the deed of Lyman to Handel.

It was admitted at the trial " that a school-house has been
on this lot and a school has been kept there ; that, since 1837,
School District No. 4 has had exclusive use of the locus for
school purposes ; and that the district has. taken exclusive care
of it." It was in evidence that, since said school district was
conveyed to the tenant in September, 1882, the premises have
not been used for school purposes; and that the school-
house thereon was removed before the demandants brought
this action.

There was no evidence that Jesse F. Richards, since 1837,
ever possessed, occupied, had seisin of, or controlled the de-
manded premises, or that its possession by the district (ad-
mitted by the parties as above stated) was ever disputed by
any one, or was by the license or permission of any one, except

9 Cor. Cas. — 14

Digitized by



SO far as appears from the evidence herein stated, or may
properly be inferred therefrom.

Each party contended that, as matter of law, upon the evi-
dence, he was entitled to judgment. The judge found for the

Final judgment was to be entered for either party, as the
court mi^ht determine.

T. M Stetson (/. E. Pond^ Jr.y with him) for the tenant

C. W. Clifford & F. C. S. Bartlett for the demandants.

W. Allen, J. — One inference of law from the facts stated in
FAow. the report is that Jesse F. Richards, the ancestor

of the denaandants, was seized of the premises under the deed
of Elihu Daggett to him delivered and recorded in 1829. An-
other mference of law is, that the same Jesse F. Bfchards was
disseised of the premises by School District No. 4 in Attle-
borough in 1837 5 ^"d he never afterwards entered upon the
premises or recovered seisin thereof. The statute of limita-
tions is therefore a bar to the action. Pub. Sts. c. 196; Gen.
Sts. c. 154; Rev. Sts. c. 119.

The argument for the demandants, as we understand it, is
that the school district entered under a deed to it from a
stranger, which, while it gave the grantee no right or title,
showed that it entered claiming an estate less than a fee
simple ; and that the purpose of the entry and possession was
such that the act could not constitute a disseisin.

Without considering the answer that an actual ouster, the
S^S<SSu8« beginning of a possession exclusive, notorious, ad-
JSrscSSS^^ verse, and uninterrupted for forty years, cannot
po»M^ BxcLu jjg qualified into something less than a disseisin, by
showing that it was under the deed of a stranger having
neither title nor possession, purporting to convey less than an
estate in fee simple, it is a suflScient answer to the argument
that the deed in question did purport to convey an estate
in fee simple. It is in the common form, and contains
the usual covenants of a deed of warranty. The only question
made is upon the effect of the words immediately following
the description of the land, " Said lot of land to be used, oc-
cupied, and improved by said inhabitants as a school-house
lot, and for no other purpose." If these words constituted a
condition, the deed would still purport to convey an estate in

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fee simple, absolute against the true owner and all the world
except the grantor and his heirs or devisees. But they do not
import a condition, or in any way limit the legal estate granted
by the terms of the deed. Rawson v, Uxbridge School Dis-
trict, 7 Allen, 125 ; Sohier v. Trinity Church, 109 Mass. i, 19;
Packard v. Ames, 16 Gray, 327 ; Episcopal City Mission v.
Appleton, 117 Mass. 326. So far as the deed affects the char-
acter of the entry, it tends to show that it was under a claim
of title in fee simple.
Judgment for the tenant

Board of Education
Board of Education,

(42 Ohio St, 680 )

The board of education of a township established a central or high
school under the provisions of the act of March 14, 1853, S. & C. 1346, as
amended May 14, 1868, S. & S. 712, and erected a building in a sub-
district of the township for the use of the school, and the building was
used, by agreement between the board of education and the local direc-
tors of the sub-district, for the central or high school and the school of
the sub-district. The territory comprised in the sub-district after the
establishment of the central or high school, and before the act of May i
1873 (70 Ohio Laws, 195), was formed into an incorporated village. Held,
that the property of the central or high school and the management of
the school did not, by virtue of said last-mentioned act, pass to the board,
of education of the incorporated village.

Error to the District Court of Trumbull County.

The board of education of Hubbard township, Trumbull
County, in June, 1868, commenced proceedings under sec-
tion 21 of the act of March 14, 1853, to provide for the reor-
ganization, supervision, and maintenance of common schools,
S. & C. 1346, as amended May 14, 1868, S. & S. 712, to es-
tabUsh in that township a central or high school. Their pro-
ceedings resulted in the establishment of such school and the
location of a building for that purpose in sub-district num-
ber 5 in the township. In 1870, the building being com-
pleted, by agreement between the board of education of the

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township and the local directors of sub-district number 5, the
rooms in the second story of the building were used for the
central or high school, and the rooms in the first story were
used for the school in sub-district number 5. After the
schools had been in operation for some time in this way, the
territory comprised in sub-district number 5 was formed
into an incorporated village. This occurred some time prior'
to the passage of the act of May i, 1873. The action in the

Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 22 of 73)