Goff v. United States , 22 App. D.C. 512 ( 1903 )

Mr. Justice Morris

delivered the opinion of the Court:

There are'numerous assignments of error, but there are only three questions in this ease that require serious consideration by us. They are: (1) That of the admissibility-in evidence of the transcript from the Treasury Department that was offered on behalf of the United States to show the state of the account of the •defendant Ewing; (2) that of the burden of proof as to the contents of the safe of the defendant Ewing at the time at which it was seized by Strong and Nightingale under the order of the Attorney-General, and (3) the question of the allowance of interest in the judgment beyond the expressed penalty of the bond.

1. Section 886 of the Revised Statutes of the United States, U. S. Comp. Stat. 1901, 670, provides that, when suit is instituted by the United States in any case of delinquency of any person accountable for public money, a transcript from the books and proceedings of the Treasury Department, duly certified, and duly authenticated under the seal of the Treasury Department, shall be admitted in evidence; and the court trying the cause shall be authorized to grant judgment and award execution accordingly. In pursuance of this provision of law, counsel for the United States introduced in evidence on behalf of the United States a duly certified and authenticated transcript from the Treasury Department, containing a copy of the bond sued on and a statement purporting to be a statement of account between the defendant Ewing and the United States, Avhereby it appeared that there was a balance of $9,303.70 due from Ewing to the United States as of the date of June 15,1888, on which day it seems the accounting was finally closed. And this constituted the testimony in chief on behalf of the United States. Exception was taken by the defendants to its admission.

It is argued before us on behalf of the defendants that the transcript was inadmissible in evidence, on the several grounds as alleged, that it is a fragmentary and not a complete statement of account; that it appears to be made up in part of items not within the personal knowledge of the accounting officers and not relating to the ordinary transactions of the Treasury Department ; that it is unintelligible; that, even if it were competent evidence, the jury could not be required to find a verdict based upon it, even in the absence of contravening evidence; and that it was not competent- evidence as to the amount of money that was in the safe of the defendant Ewing at the time of its seizure, or even as to the amount of money that Nightingale deposited in the Treasury to the credit of Ewing. But plainly most of these grounds are insufficient and require no serious consideration by us.

The transcript in question, which was exhibited in court before us, is quite voluminous, perhaps unnecessarily so; but only a small part of it, which seems to be agreed upon as containing the sum and substance of it, and which consists mainly of some schedules showing the ultimate account, is included in the printed record before us. The remainder seems to have been very properly omitted. This transcript is understood to have been made up in the mode usual in the Treasury Department, and to shoAV the proceedings in that department as they are transacted there. We can not assume that the system of bookkeeping in that department is not in accord with the best and most approved methods for the keeping of accounts. The exhibits and schedules, Avhich are found in the printed record before us, appear, it is true, to- be somewhat fragmentary. But it is unnecessary, and would probably be impracticable and would serve no useful purpose, to include in such a transcript an account of all the transactions of the defendant Ewing with the United States. It seems to be the practice of the accounting officers, and it certainly seems to be a most commendable and even necessary practice, to keep an account with each disbursing officer for each appropriation made by Congress which is disbursed by him. Eor some of these appropriations he may have faithfully and fully accounted; for others he may be in default. It would be useless, and might eA^en be confusing, to include the transactions as to the former in a transcript like the present. Only the transactions connected with the appropriations for which he is in default need be shoAvn in it. If the paper before us is of a fragmentary character, it is not pointed out wherein it is deficient.

Nor can we regard it as unintelligible, as it is claimed to be. There are figures in separate columns purporting to be debits and credits. The defendant Ewing knows, or ought to know, whether he received the several sums with which he is charged, and paid out the several sums which he is credited with having disbursed. There would seem to be no pretense that he did not receive from the United States all the items with which he is charged, and that the credits given to him for disbursements are correct as far as they go. The real ground, and we may say the only substantial ground, of objection is that they do not go far enough, and that there are other credits which ought to have been given. And this leads us to the consideration of the second question in the case, upon which evidently most reliance is placed.

2. The defendant Ewing claims that, at the time at which he was removed from his office and the custody of his safe was taken ' from him, he had in that safe between $6,000 and $7,000 in cash, besides vouchers and receipts of an indefinite amount which he was unable to specify; and that, taken together, these were sufficient to cover the amount of the alleged deficiency. It is argued on his behalf that, under the special circumstances of the case, the burden of proof was on the United States to show that due credit had been given to Ewing for the money and vouchers that had been taken from him; and that, if by reason of the death of a witness and the loss of papers by the United States in the removal of the offices of the Department of Justice it has become impossible to show what that amount was, the United States must bear the loss, and not Ewing.

This proposition we must regard as wholly untenable and without application in the present case. The testimony of Ewing himself, which is relied upon to establish the existence of a condition of things that would justify the shifting of the burden of proof, is very far from satisfactory; and the jury evidently declined to give credence to it. Even if we were to accept his own statements as true in spite of their inherent improbability, it was not the part of an innocent man or of a man of ordinary prudence, charged as he knew he was at the time with a deficiency in his accounts, and having, as he now claims he had, money and vouchers in his safe amply sufficient to cover that deficiency, to abandon his safe and his office, and not to. make the slightest effort to assure himself and the officers appointed to take charge of his office that the contents of the safe were such as he now claims. Either the story is incredible, or there was remarkable recklessness on the part of Ewing. He was not precluded by the order of the Attorney-General from having access to his safe, and we can not believe that Strong and Nightingale did not communicate the order to him, since it distinctly directed that they were to examine the contents of the safe in connection with him. There is no reason apparent why Strong and Nightingale should have deliberately disregarded this part of the order.

But, as matter of fact, the United States assumed the burden of proof of the contents of the safe; and Strong testified specifically and positively that there were only $32 in cash and $1,668.51 in vouchers. The testimony could not well have been more positive; and it, became a question for the jury to determine what the fact was between the positive statement of Strong and the vague and indefinite assertions of Ewing. And this question was properly left to the jury by the trial court, and the jury decided it against the contentions of Ewing.

We may refer to the latest utterance of the Supreme Court of the United States on the subject of suits upon official bonds given by disbursing officers and agents to the United States, in the case of Smythe v. United, States, 188 U. S. 156, 47 L. ed. 425, 23 Sup. Ct. Rep. 279, in which the principal cases on the subject are reviewed, as ample authority for the ruling of the trial court in this regard in the case now before us.

3. There remains to be considered tire question raised by the appeal of the United States from the refusal of the trial court to allow interest on the amount due from Ewing to the United States beyond the specific amount of the penalty of the bond.

The verdict of the jury had found due the amount claimed, $9,303.70, and interest thereon from January 8, 1889, until payment or satisfaction. This, at the time of the verdict, amounted to upwards of $16,000 in all, while the penalty of the bond was only $10,000. Now, of course, the amount is still greater. The question is whether the surety on the bond is liable-to that extent, or whether this liability is- limited absolutely and in all cases to $10,000. Of course, as to the principal Ewing; there is no such question. It is settled by § 3624 of the Revised. Statutes, U. S. Comp. Stat. 1901, p. 2418, which provides that, “whenever any person accountable for public money neglects or refuses to pay into the Treasury the sum or balance reported to be due to the United States, upon the adjustment of his account, the First Comptroller of the Treasury shall institute suit for the recovery of the same, adding to the sum stated to be due-on such account the commissions of the delinquent, which shall be forfeited in every instance where suit is commenced and judgment obtained thereon, and an interest of six per centum perannúm from the time of receiving the money until it shall be-repaid into the Treasury.”

As to the sureties, the question is somewhat different. In general, the rule is well settled that they are liable only to the extent of the penalty of the bond. That penalty in the present, case is only $10,000; and the amount due from the principal to the United States is now upwards of $16,000. But when the-suit was instituted and demand was thereby made upon the-sureties on January 8, 1889, even if no demand had been made-before that time, the amount due was less than the penalty off the bond, and could have been discharged by payment within the limit of the bond. It was the fault of the sureties that they did not then pay when the bond became forfeited and the United States became entitled to receive the money. For their default in such payment they are liable to pay interest, by way of compensation to the United States for damages sustained by the retention of the money. 'Whatever diversity of opinion there may have been formerly in the courts of England and in those of the-several States of our Union on this point, we think we may regard the question as settled for this jurisdiction. In the case off the District of Columbia v. Metropolitan R. Co. 8 App. D. C. 376, this court said: rule in England prior to the statute of 3 and 4 William IV., chap. 42, but perfectly well settled with us, ‘that if a debt ought to be paid at a particular time, and is not then paid, through the default of the debtor, compensation in damages equal to the value of the money, which is the legal interest upon it, shall be paid during such time as the party is in default.’ See 1 American Leading Cases, 1616, where the cases upon the subject are collated and discussed. And this rule has received the approval of the Supreme Court of the United States. Loudon v. Taxing District, 104 U. S. 771, 26 L. ed. 923; Chicago v. Tebbetts, 104 U. S. 120, 26 L. ed. 655; Young v. Godbe, 15 Wall. 562, 21 L. ed. 250; Curtis v. Innerarity, 6 How. 146, 12 L. ed. 380. It is true that, in order to be allowed, it should be claimed in the declaration ; but when it is so claimed there can be no doubt of the right of a plaintiff, upon a proper showing, to recover interest as well as principal.”

“We think it may be stated as the general rule of the common law of our country, different, it is true, from the former

We find no reason to depart from this rule in the present instance. We think that it is sanctioned not only by the cases cited, but also by the recent case already mentioned of Smythe v. United States. If we are in error in regard to it there will be opportunity for the parties to have the error corrected on appeal.

From what we have said it follows that, in our opinion, there was no error in the rulings of the trial court so far as the defendants Ewing and Goff are concerned; but that it was error to refuse to enter judgment for the amount of the verdict as rendered by the jury. That error can be remedied here without a reversal of the case; and it will be for the interest of all the parties, and it will facilitate the final disposition of the case to have the judgment corrected here by having it entered in precise accordance with the verdict. So modified, it will be affirmed.

It is the order of this court, therefore, that the judgment appealed from be modified, so as to be for the United States for the sum of $9,303.70, with interest thereon from January 8, 1889, besides the costs of suit; and that so modified it be affirmed, with costs. And it is so ordered.

A writ of error to the Supreme Court of the United States, prayed by the appellant, was allowed November 13, 1903.