O'Neal v. Board of School Commissioners

Baetol, J.,

delivered the opinion of this Court.

This is an action of assumpsit by the appellees against the appellant. The declaration contains, among others, a count for money had and received by defendant to the use of the plaintiffs, and for money found due plaintiffs on an account stated.

In the bill of particulars filed, it is stated that “ the amount claimed is $417.57, balance due upon the levy, for the benefit of the school fund placed in the defendant’s hands for collection, as collector of the county taxes *238 for the year 1854, with interest thereon from six months after the date of the levy.”

The facts of the case as disclosed by the proof are that in 1852 certain county charges or “ Court orders” were paid by the order of the County Commissioners, out of the school fund of the county. In 1854, to reimburse the sum so expended, the sum of $1,400 was levied by the County Commissioners “ for the use of the school fund of Washington county

The defendant was collector of State and County taxes for the year 1854, and, as such, collected the sum of $1,400 so levied “ for the use of the school fund.” Part of the money so collected was paid by the appellant, and this suit-was instituted to recover the balance. Five bills of exceptions were taken at the trial.

The fifth exception will be first considered. This was taken to the rejection of six prayers offered by the defendant, which present the fallowing points or objections to the right of the plaintiffs to recover :

1st. That the right of action was in the County Commissioners and not in the plaintiffs. ,

2d; That there is no privity of contract between the parties.

3d. That the defendant having given his official bond for the faithful discharge of his duties as collector, an action of assumpsit cannot be maintained against him.

4th. That the money sued for was unlawfully levied.

1st. As to the right of the plaintiffs to sue. By the Act of 1853, ch. 355, they were constituted public agents to receive and disburse the school fund of the county. By the 5th section, they and their successors were clothed with “full and complete power and exclusive control “ over this fund, and were empowered to have, demand, receive, hold, vest, and reinvest the same in behalf of and for the benefit of the primary schools, and for the promotion of education in the said county.” And all *239 money due and to become due and payable for the uso of tbe school fund, was made payable to their order. These provisions constitute the plaintiffs a quasi corporation, with capacity to sue for and recover any moneys belonging to, or appropriated for the use of the school fund, which they alone were entitled to receive, and over which they had the exclusive control. Overseers of the Poor of Pittstown vs. Overseers of the Poor of Plattsburgh, 18 Johns. Rep., 407.

2d. As to the privity between the parties. It has been argued by the appellant that the fund in question, having been assessed by the County Commissioners among the public taxes, it rvas payable when collected only to them or their order : that the responsibility of the collector was to them, and not to the plaintiff's ; and in support of this position we have been referred to Williams vs. Everett, 14 East, 582, 596 ; Price vs. Easton, 4 B. & Ad., 433 ; Baron vs. Husband, 4 B. & Ad., 611 ; Howell vs. Batt, 5 B. & Ad., 504 ; Barlow vs. Brown, 16 M. & Wels., 126 ; French vs. Fuller, 23 Pick., 108 ; Weston vs. Gibbs, 23 Pick., 205 . These cases have been carefully considered, and without impugning the principles upon which they were determined, we are of opinion they are not applicable to the present case. Here the proof shows that the levy of the sum in question was made by the County Commissioners for the use of the school fund, and was so designated on the levy list placed in the defendants’ hands. He assumed the duty of making the collection for the uses indicated ; and when the money was received by him, it enured to the use of the plaintiffs, who by law were entitled to demand and receive the school fund ; and thus was money received by the defendant for their use. No further order or action by the County Commissioners was necessary to vest the title in the plaintiffs or entitle them to sue. In Owings’ Exc’rs vs. Owings, 1 H. & G., 484, it was said that “a promise by *240 a debtor to his creditor to pay his debt to a third person, will not enable such third person to maintain an action at law in his own name for its recovery.” But “ where- one pays money to another for the use of a third, or where a person having ready money belonging to another, agrees with that other to pay it over to a third, in both these cases an action may be brought in tbe name of the person beneficially interested.

In Vrooman vs. McKaig, 4 Md. Rep., 454 , the Court declared that in an action for money had and received, the plaintiff may recover any money in the hands of the defendant, which ex eguo et bono belongs to the plaintiff. According to these authorities, which are not in conflict with the cases cited by the appellant, but rest upon distinct grounds, we are of opinion there is no want of privity between these parties.

3d. It is no good objection to this suit that the defendant was bound upon his official bond, and might have been sued thereon in the name of the State. That is a distinct and collateral remedy which the party entitled to the fund is not bound to pursue. In a suit upon the bond the defendant and his sureties would be liable; and if the action were instituted in the name of the State it could only be brought on the bond. State vs. Stewart, 4 H. & McH., 422 . Notwithstanding the bond, the defendant, by reason of the receipt of the money by him, is personally answerable to the parties entitled to claim the same, and may be sued in assumpsit if they so elect.

4th. The case of Waters and others vs. The State, 1 Gill, 302 , furnishes a conclusive answer to the objection growing out of the supposed illegality of the tax. Even if there were good ground to question the legality of 4he action of the County Commissioners in levying the tax, the defendant could not be permitted to raise the objection in his defence in this action.

*241 This Court is of opinion there was no error in rejecting the defendant’s prayers.

We affirm the ruling of the Circuit Court also upon the first and second exceptions, for the same reasons; there being no other objections to the admissibility of the evidence therein referred to, except such as are presented in the prayers, and which have already heen disposed of.

The third and fourth exceptions present the question of the competency of Maddox, the Treasurer of the Board of School Commissioners, to testify for the plaintiffs; and the admissibility of his evidence.

The objection to his testimony made by the appellant, is that being treasurer, and having given his receipt to the defendant for the money sued for, he was prima facie liable to the plaintiffs and interested in obtaining a verdict against the defendant, thereby exonerating himself. This objection, whatever force it might have, could not apply to the evidence offered in the third exception, which was simply that the defendant had acknowledged that he had collected the money. The effect of such testimony was not to shift the responsibility from the witness.

When the evidence stated in the fourth exception was offered, for the purpose of contradicting the receipt of the witness, and proving that it was erroneous and that the money had not been all paid by the defendant; and objection was made to its admissibility, a release to the witness from the plaintiffs was produced.' The effect of that release was to remove the objection to the witness on account of interest. In our opinion there is no valid ground for denying the power of the plaintiffs to execute the release. Being entitled to maintain the action in their own names, as the lawful custodians of the fund and having the capacity to sue ; they had of course the power to do all other acts incidental to the prosecution of the suit. Overseers of the Poor of Pittstown vs. Overseers of the Poor of Plattsburg, 18 Johns. Rep., 407, 418. We do *242 not mean to decide that in this case the release was necessary to restore the competency of the witness; there is much force in the view presented by the appellee that as agent and servant of the plaintiffs his testimony concerning matters in the course of his business and employment would he admissible on the principle of necessity. But it is not necessary to decide that question. With the release he was clearly competent.

(Decided 21st June, 1867.)

The observation made by the Judge of the Circuit Court that “ he would he competent without the release,” was not material, did no injury to the appellant, and forms no ground for reversing the judgment.

Judgment affirmed.