Inhabitants of Adams v. Farnsworth , 81 Mass. 423 ( 1860 )

Hoar, J.

The court are of opinion that, for two reasons, the verdict must be set aside, and a new trial granted.

The action is for money had and received by the defendant to the plaintiffs’ use. The proof was that the defendant had received certain sums as treasurer of the plaintiff town, which had not been charged to him in his annual settlement, and that therefore a large balance should have been credited to the town by him in his next account. The answers put in issue any such liability.

It seems to us that in such an action the whole account between the parties is necessarily opened. The defendant denies that any larger balance is due than has been credited. But he is still the treasurer of the town, entitled by his office to the general custody of the town’s money, and the plaintiffs do not seek to take it from him. It is only because he denies his liability for certain sums, not carried into his account, that this action is to be maintained. But when a settled account is opened on one side, for the purpose of showing errors, it is obviously just that it should be considered as open on the other side, for the same purpose. If there are errors which balance each other, the plaintiffs have no cause of action, because the defendant has no money in his hands which he has omitted or refused to credit. From the nature of the relation between the parties, as well as from the nature of the action, if he has already by mistake credited the plaintiffs with an amount equivalent to that with which they seek to charge him, there is no foundation for their claim. He has no money of theirs beyond the sum for which he has already charged himself, and which they are content that he should hold in the execution of his ordinary official duty.

It would not be sufficient to maintain this action against the town treasurer, to show merely that he had received certain sums of money, if he had accounted for them, or properly paid them out in the plaintiffs’ service. And in readjusting the account, when the plaintiffs seek to go behind the settlement, we do not think it is to be treated as a charge on the one side, and a set-off, to be strictly pleaded and specified as such, on the other. It results in a single question, whether the balance credited should have been larger; and if so, to what amount. The plaintiffs, to establish their side of the proposition, may show specific sums for which the defendant has refused to account; and he in his turn may show that the balance is correctly struck, because the errors against him balance those in his favor.

It would of course be competent for the court in which the cause is pending to order any specifications on either side which would prevent surprise and facilitate the course of the trial.

In applying this rule, the defendant should have been admitted to prove that certain taxes, which had not been legally assessed, and which he could not legally collect, had not been received by him, and had been charged to him in account. It was decided in Cheshire v. Howland, 13 Gray, 321, that a collector of taxes is not responsible for taxes committed to him by an illegal warrant, which he could not enforce; and the principle of that decision is applicable to the case before us.

For a still stronger reason, we are unable to perceive a sufficient cause for the exclusion of the evidence of the payment of the sum of $ 127.21 by the defendant before the commencement of the suit. The agreement of the parties would seem to have been a complete waiver of any defect in the pleadings or specifications, if any such existed.

If the proof had shown that this was a mere payment from the receipts of the current year, and balanced by sums to be charged to him in the same account, this might have been a sufficient answer, and rendered the defence ineffectual But as the evidence appears in the bill of exceptions, we think it should have been allowed to go to the jury.

The other exceptions of the defendant we do not consider well founded. Exceptions sustained.