Wolffe v. State , 79 Ala. 201 ( 1885 )

STONE, C. J.

There is nothing in the objection, that the Attorney-General, when he sued out the attachment, did not exhibit the Governor’s written direction that he should do so. Code of 1876, § 2902. Such direction is, at most, the Attorney-General’s authority for bringing the suit; and if the direction was not given, the omission should be taken advantage of by motion to dissolve the attachment, made before joining issue.—Jordan v. Hazard, 10 Ala. 221; VanDyke v. The State, 24 Ala. 81.

Neither is there any thing in the alleged misjoinder of counts. Each count is clearly in assumpsit, the difference being that the count added by way of amendment is a special count, whereas the original complaint contained only common counts. Mobile Life Ins. Co. v. Randall, 74 Ala. 170.

The tax-collector of Montgomery county deposited the State tax-money in bank, to the credit of “I. H. Yincent, treasurer.” Yincent was then treasurer of the State of Alabama. lie checked out twenty thousand dollars of this money, and with it purchased exchange on New York — the draft made payable to the order of “I. II. Yincent, treasurer.” Yincent indorsed the draft to Wolffe, signing the indorsement “I. H. Yincent, treasurer.” Wolffe knew Yincent was treasurer of the State of Alabama. The draft was collected, and the proceeds placed by Wolffe to Yincent’s credit, in payment of an individual indebtedness from the latter to the former. The present suit was brought to recover this, with other sums, from Wolffe; and there was verdict and judgment in favor of the State, for the twenty thousand dollars.

There can be no question, that the word “ treasurer,” appended to Yincent’s name, both as payee and indorser of the draft, was notice enough to put Wolffe on inquiry, which, if prosecuted, would have led to the discovery that the money was not Yincent’s, but belonged to the State of Alabama. Brush v. Ware, 15 Pet. 93-113; Duncan v. Jordan, 15 Wall. 165; National Bank v. Insurance Co., 104 U. S. 54; Shaw v. Spencer, 100 Mass. 382; Pannell v. Hurley, 2 Coll. 241; Bodenheim v. Hoskyns, 2 De Gex, M. & Gordon, 903.

The question of real merit in this case is, whether the State can sue at law for the money, without a previous act of the legislature, ratifying a real or supposed tortious use of the money; or, to state it differently, whether there is any power, other than the legislature, which can waive the tort, and authorize a suit in assumpsit. The inquiry may well arise in this case, what tort is to be waived, or what illegal act to be ratified? We may concede that the tax-collector was without authority for placing the tax-money on deposit in bank, and the treasurer was under no obligation to call for it, or to receive it from that depository. We may concede further, that until Vincent chocked out the money, it remained the tax-collector’s, and was subject to his risk.- What was its status, after Vincent obtained control of it, by checking it out of bank? Had it not then reached its.proper depositary and destination? Was it not then the money of the State, in the hands of the proper custodian, the State treasurer? Is the case different from what it would have been, if the money liad been sent to the treasurer by a private hand — an irresponsible one, if you please?

The State has need, constantly recurring, of funds in the hands of its fiscal agent, to meet its semi-annual interest payable in New York. There is nothing suspicious, nor out of the usual routine, in the purchase of exchange by the State treasurer with State funds, even for larger amounts than twenty thousand dollars. The illegality is found, not in the receipt of the money by Vincent. He was entitled' to it. Not in the purchase of exchange. He had authority to purchase it. It consisted alone in the application of the funds of the State, having the ear-mark of its ownership, to Vincent’s individual uses. In this, both Vincent and Wolffe participated, actively and knowingly. The money was trust money in Vincent’s hands —bore on its face the impress that it was trust money ; Vincent held it as trustee, and by aiding him in its misapplication, Wolffe constituted himself trustee in invitum — co-trustee with Vinceut, and liable to account for its misappropriation.—Lee v. Lee, 67 Ala. 406, and authorities cited, 423; Milhous v. Dunham, 78 Ala. 48; National Bank v. Insurance Co., 104 U. S. 54; Shaw v. Spencer, 100 Mass. 382; Skinner v. Merchants' Bank, 4 Allen, 290; Cobb v. Wanemaker, 78 Penn. St. 501x.

We again inquire, what act developed in this transaction is it necessary to ratify, or what tort to waive, in order to maintain this suit ? This is not the case of an alleged change of the character of the thing claimed, such as the sale of a chattel, and conversion of it into money, or into some other chattel. In such case, there must be a ratification of the unauthorized sale, before the substituted money or article can be claimed ; and claiming the money validates the sale, and vests in the purchaser a title to the property converted.—Butler v. O'Brien, 5 Ala. 316; Harrison v. Gardner, 10 Ala. 185; Williams v. Jones, at present term. This requires ratification, which can only be done by competent authority. In this case, there has been no change of the character of the thing claimed. It was money at the beginning ; it is still money. Claiming it of Wolffe, is no abandonment of Vincent’s liability, any more than suing B, for an alleged second conversion of a chattel previously converted by A, would be an abandonment of all claim against A. Each is liable to suit and judgment; and nothing less than satisfaction by one will discharge the other. Beazley v. Mitchell, 9 Ala. 780; Spivey v. Morris, 18 Ala. 254; Bott v. McCoy, 20 Ala. 578; Hyde v. Noble, 38 Amer. Dec. 508; Sessions v. Johnson, 95 U. S. 347; Wharton on Agency, § 72-2.

The present case is distinguishable from Van Dyke v. State, 24 Ala. 81. In that case, the money was paid to a person not authorized to receive it — a mere private agent of the depositors, so far as that sendee was concerned. The money never reached the hands of the treasurer, and therefore it never became the State’s money. What was done did not discharge the tax-debtors, any more than a delivery of the money to any other faithless agent would have discharged them. Yan Dyke, though not liable to the State, in the absence of ratification of the payment to him by competent authority, was nevertheless liable to the parties who deposited the money with him. In this case, when Yincent drew the money out of the bank,- the tax-collector was eo instanti discharged, and at the same time Yincent and his sureties became bound to the State for its faithful administration.

The two cases of Perley v. County of Muskegon, 32 Mich. 132 (s. c., 20 Amer. Rep. 637), and State v. Keim, 8 Nebr. 63, are not reconcilable with our views, nor are they reconcilable with our former rulings. They ignore the principle, that an outsider, by aiding in the misapplication of trust funds, knowing them to be such, constitutes himself trustee, and must account as trustee.

The case is thus narrowed down to this : Wolfl'e obtained possession of twenty thousand dollars of the State’s money, illegally, charged with knowledge that it was the money of the State, which Yincent had no authority to pay to him on private account. lie received it illegally, and holds it tortionsly.

There is no matter of account to be settled, for Wolife could be entitled to no credits against it. The action of assnmpsitmoney had and received — will lie for its recovery.—1 Brick. Dig. 140, §§ 61, 72, 73; Hitchcock v. Lukens, 8 Por. 333; Vincent v. Rogers, 30 Ala. 471; s. c., 33 Ala. 224; Finney v. Cochran, 37 Amer. Dec. 450; s. c., 1 Watts & Serg. 112.

Affirmed.

Clopton, J., not sitting.