Edson v. Hayden , 18 Wis. 627 ( 1864 )

By the Court,

Cole, J.

Had the complaint in this case contained the averment that when the order therein mentioned was presented to the defendant for payment, he had money in his hands belonging to the school district, with which to pay it, then, it appears to us, it would have stated a' good cause of action against the defendant personally, It would then have shown that the defendant had money in his hands which in equity and good conscience he ought to pay the plaintiff, and the law would imply a promise to pay it to the owner. For we think it a very clear .proposition, that if the treasurer of school district receives money belonging to his district devoted to the payment of teachers’ wages, and refuses to pay it over on a proper order and demand, he becomes personally liable in an action to the teacher. And as we understand this to be a personal action against the treasurer of a school district, we think the complaint is defective for not alleging that when the order was presented to him he had received money as treasurer to pay and satisfy the order. It is said that since the period had elapsed when by law it became the duty of the treasurer to apply for and receive from the town treasurer the school moneys belonging to his district, a court ought to presume that the school district treasurer had discharged his duty, and had money in his hands when the order was presented to him. But no such presumption can be made in aid of the defective alie-gations of tbe complaint. It is impossible for a court to say, as a matter of law, that the treasurer had moneys in his hands belonging to the district with which to pay the order. He may have failed to collect and receive any money from the town treasurer, for some valid reason; or may have paid out what he did receive, to discharge some other school orders drawn upon him. If he had not money belonging to the district, with which to discharge the order, it is not claimed that he was under any obligation to pay it out of his own pocket. We think, therefore, the complaint was defective in the particular above stated.

On the tiial of the cause in the circuit court, the plaintiff moved to amend the complaint by inserting an allegation to the effect that when the order was presented to the defendant he had in his hands, as treasurer, moneys for the purpose of paying and satisfying the same. The court refused to permit the amendment to be made. We do not readily perceive upon what ground or for what reason this motion was peremptorily denied. It appears to us to have been a very proper case for the court to exercise the power of granting amendments upon such terms as might be deemed just. The decisions of this court would have fully sanctioned such an amendment, and it would have been in accordance with the language and intent of the statute upon that subject. See the cases cited on the brief of the counsel for the appellant, and section 37, chap. 125, R S.

From the views already expressed, it will be seen that we regard this as an action against the defendant personally, and not one against the school district, and that the addition of “treasurer” &c., is mere descriptio persorm.

The judgment of the circuit court is reversed, and the cause remanded for further proceedings.