Bridges v. Hurlburt , 91 Or. 262 ( 1919 )

BURNETT, J.

1. Virtually this is a suit to enjoin collection of any tax in excess of the balance that would have remained after deducting $1,849.12 as of date October 5, 1916, from the total charge as it then stood. This cannot be accomplished without tendering and bringing into court the amount of tax admitted to be due. The Oregon cases on this point are collated by Mr. Justice Bean in Cannon v. Hood River Irr. Dist., 79 Or. 71 (154 Pac. 397).

2. The complaint shows that the plaintiffs had agreed with Seckendorf that he .should pay the first half of the taxes. This constituted him their agent for that purpose and, in the absence of the defendant’s knowledge to the contrary, amounted to holding him out as their representative in the settlement of all the taxes. The plaintiffs do not claim that the sheriff had any notice whatever of the limitations upon his commission in that behalf. So far as the record discloses, Seckendorf in his dealings with the sheriff was acting in the apparent scope of his authority respecting the whole of the taxes. He was the intermediary which the plaintiffs had established in their dealings with the sheriff. The latter had a right to regard him as. their representative. For all that appears in the evidence, the defendant was entitled to believe that the crooked dealings of Seckendorf were due to the acquiescence or default of the plaintiffs themselves. In other words, having held Seckendorf out as their representative, the plaintiffs were responsible for his shortcomings. Nor was it incumbent upon the sheriff to notify the plaintiffs of the wrongdoings of Seckendorf.

3. Our statute permits one half of the taxes to be paid on April 5th of each year and the last half on October 5th of the same year, subject to an interest charge for nonpayment. The tax-collector is not authorized to receive less than that amount in discharge of taxes. On discovery of the deceit of Seckendorf the sheriff had a right to rescind the transaction of which it was a part and in doing so he was justified in returning all that he had received by virtue of the transaction, when demanding a return of the receipt he had issued. In doing that he was entitled to return the checks to the person from whom he had received them. In our judgment, the great preponderance of the testimony is to the effect that the sheriff received not only the sham checks, -hut the valid Bridges and Strode checks direct from Seckendorf. Mrs. Strode’s son was the only witness who testified in behalf of the plaintiffs in support of their allegation that Mrs.- Strode and Mrs. Bridges had caused their checks to be delivered to the defendant. The son, however, in describing what he had to do with those checks, said:

“There seems to be a dispute about that, but it is my honest contention and belief that I mailed both of those checks to the sheriff’s office, along with the other checks and statements which I have here in my possession.”

Seckendorf’s testimony, together with that of the deputies of the sheriff in charge of such matters, constitute a preponderance of the testimony to the effect that the two valid checks in question were received direct from Seckendorf.

4. But, taking all the testimony together, independent of whether the son mailed the two checks to the sheriff or whether they came from Seckendorf direct, the testimony plainly shows that the plaintiffs held out Seckendorf as their agent for the purpose of paying the taxes, and the defendant was authorized to treat with him in that capacity. It seems to be a case where the plaintiffs have placed Seckendorf in a position in which he could act fraudulently; that he has done so and that the plaintiffs must bear the consequences of his wrongdoing, although they themselves may in fact be innocent of any intention to deceive: Fiore v. Ladd, 22 Or. 202 (29 Pac. 435); Copeland v. Tweedle, 61 Or. 303 (122 Pac. 302); Bankers’ National Bank v. Western Union Cold Storage Co., 73 Ill. App. 410; Stoney Creek v. Smalley, 111 Mich. 321 (69 N. W. 722); Hall v. Catherine Creek Development Co., 78 Or. 585 (153 Pac. 97, L. R. A. 1916A, 996).

The decree of the Circuit Court is affirmed.

Affirmed.

McBride, C. J., and Benson and Harris, J J., concur.