Bowen v. School District No. 9

Per Curiam:

The plaintiff below recovered judgment for the amount of a school district order and the interest thereon; defendant 'having, as the referee found, wrongfully procured the order as a substitute for a certain Goodyear order, wbicb he untruly claimed to have paid and then lost, and having afterwards used it as money in the payment of his taxes. The recovery was on the. common counts in assumpsit.

It is objected that an action in tort should have been brought, and not assumpsit. But as tire defendant made use of the order as money, the law will raise an - implied promise to pay the amount. The district perhaps might have sued in tort, but was not compellable to do so.

*150 It is also objected that the court excluded the evidence offered to show an admission by Goodyear’s clerk that the prior order was in fact paid by defendant to such clerk. The admission is relied upon as an admission made by an agent in the course of his agency. The evidence of the clerk’s agency consists in the showing that payment was made to him, which he denies. The admissions sought to be shown were made afterwards, if at all, and were entirely unconnected with any act of agency. On this ground they were inadmissible. But they were also objectionable on the ground that they would only go to establish the actual existence of an agency by showing that an act as agent was in fact done; in other words, the fact which is to authorize the reception of admissions is to be ¿Droved by the admissions themselves. For to show that one man is clerk for another certainly does not establish his right to receive for his employer payment of demands not shown to have any connection with the business.

It is also claimed that the judgment below embraced more interest than was allowable. We find the difference insignificant, and are not disposed to inquire too nicely into it.

The judgment must be affirmed, with costs.