Stearnes v. Edmonds , 189 Ala. 487 ( 1914 )

SOMERVILLE, J.

One who is appointed deputy tax collector, and in that capacity “undertakes to collect the taxes,” is not liable to his principal for his failure to collect all the taxes, unless his failure is due to some fault of willfulness or negligence in the discharge of his duties. He is not, in the absence of an agreement to be thus bound, a guarantor of success. Hence, in an action on such deputy collector’s bond against the deputy and his sureties, the bond being conditioned upon the faithful discharge of the duties of the office, an assignment of breach that such deputy “failed to collect all of the taxes due, and caused the plaintiff, as tax collector of Marshall county, to have to pay to the state of Alabama and the county of Marshall a large sum, to wit, $5,000,” is insufficient upon apt demurrer. A breach must be so assigned as to show that the contract has been broken, and that the plaintiff has a cause of action.—Watts v. Sheppard, 2 Ala. 425; Dunn v. Davis, 37 Ala. 95; 5 Cyc. 826b. The demurrer was interposed to the complaint, and to each breach separately, and the first, third, and fourth grounds point out this deficiency. The trial court erred therefore in overruling the demurrer as to this assignment of breach.

The other assignment of breach — viz., that the defendant has failed or refused to pay over to the plaintiff large sums of taxes, fees, and costs collected by him —sufficiently shows a breach of the obligation of the bond without specifying the particular items charged.

As to these items, the defendant moved the court to require the plaintiff to furnish him with a bill of particulars, which motion was overruled. At common law, “granting or refusing a demand for a bill of particulars is usually a matter within the sound discretion of the court under the particular facts of the case.” In this state, “when an account is the foundation of the suit,” the defendant may of right demand “a list of the items composing it.”—Code, § 5326; Morrisette v. Wood, 128 Ala. 505, 30 South. 630. We- do not think that an account is the foundation of this suit within the meaning of the statute, although the determination of the issue made by the complaint might contingently require a statement of debit and credit transactions between the parties. It is true it was said in Morrisette v. Wood, Supra, that “it it immaterial what the character of the action may he, whether for goods and merchandise sold and delivered, for money had and received, for work and labor done, or materials furnished, and the like, if an account is the foundation of the suit, the defendant is entitled to- a list of the items Composing it.” Yet, if the action is not for a recovery for such matters, the statute does not apply. Here the action is for damages for the breach of a bond.

It may be observed in passing that the defendant may in all cases secure a statement of the particulars desired, so far as they are known to- the plaintiff, by filing interrogatories to his adversary under section 4049 of the Code. This recourse was open to the defendant in this case. We hold that the requirement of a bill of particulars was not in this case a matter of right in the defendant, but rested within the sound discretion of the trial court. And since it appeared on the trial that all debit and credit transactions between the parties were kept entirely by the defendant in a book which remained in his custody, and that the items and balances were not known to the plaintiff, no abuse of judicial discretion is shown.

On the cross-examination of the plaintiff it would have been proper to allow the defendant, with respect to certain items of money paid to plaintiff by defendant, and not admitted by him, to refresh his recollection by asking if they were not procured or used for the purchase of whisky. But independent evidence of such use of the money was not material to the issue, and was properly rejected.

With respect to the Humes taxes, we think it is perfectly clear that, if the plaintiff, who Avas by law clothed with authority and duty in the matter of their collection, authorized or consented to the postponement of their payment, or of taking the legal steps for their compulsory collection, he cannot recover damages against the defendant in that behalf. “Volenti non fit injuria.” Several charges asserting this proposition were erroneously refused to the defendant.

Moreover, the plaintiff is not entitled, as of course, to recover of the defendant the full amount of the taxes which the latter even Avillfully or negligently failed to collect. He is entitled to recover only for the damage resulting to himself from such failure. And, if plaintiff knew of such failure in time to have allowed him an opportunity to collect them himself, or to cause their collection, by the exercise of reasonable diligence, it was his duty to do so, and thus avoid the threatened loss of which he now complains. He could, of course, in such case recover all incidental damage or expense resulting from the deputy’s omission. The seventh refused charge covers this proposition, and should have been given.

We presume that the rulings of the trial court upon this feature of the case were induced by the plaintiff’s testimony that although he knew of or consented to the postponement of the collection of the Humes taxes, nevertheless the defendant individually assumed responsibility for their subsequent payment, and hence, it was concluded, he ought not to escape from his obligation. But the conclusive answer to that theory is that the obligation thus assumed by the deputy was individual, and not official. It bore no logical relation to the discharge of his duties as deputy tax collector, and was separate and apart therefrom. It is clear, therefore, that his failure to discharge that personal obligation by the payment of these delinquent taxes was not a breach of the condition of the bond, and imposed no liability on the sureties who are jointly sued, nor on' the deputy himself in this form of action.

The fact that the plaintiff paid these taxes out of his own pocket in his settlement with the state and county was not material to the defendant’s liability, and might well have been excluded.

We think the defendant should have been allowed to show the contents of a letter written by Humes to the plaintiff requesting him to hold up for a while on his taxes. It tended to corroborate the defendant’s version as to the circumstances of their noncollection, and, being purely collateral to the main issues, the “best evidence” rule did not require the production of the letter itself.

The fact that the plaintiff had no recollection of an item of $100, covered by the defendant’s check to one Seibold, and used by plaintiff to pay his debt to Seibold, was a matter properly brought out on plaintiff’s cross-examination for the purpose of impeaching the accuracy of his recollection of other items as to which he had testified, although the item in question was not included in this litigation. But, being purely collateral in its bearing, the court will not be put in error because of the refusal to allow the introduction of the check itself in evidence.

The fact that the plaintiff is “unskilled and inaccurate” in collecting taxes, if so, has no legitimate bearing upon the issues involved, and evidence to that effect was properly rejected.

Several minor questions of evidence are not now noticed, as they may not arise again.

For the errors noted, the judgment will be reversed, and the cause remanded.

Reversed and remanded.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.