Town of Lyons v. . Chamberlain

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 580 [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 581 It is strenuously contended on the part of the plaintiff that the defendants are entitled to no credit whatever on account of the moneys received by Parshall from the bonds of the town and paid out by him on account of the railroad company, and whether or not this contention is well founded is the most important question in this case. *Page 583 There are only two theories upon which Parshall could be made absolutely liable for all the bonds negotiated or transferred by him. First. That he wrongfully, in bad faith, negotiated the bonds which had been made without authority and thus placed them in the hands of bona fide holders with the intention of making the town liable thereon, and thus making it liable and in that way causing it damage. An action to enforce such a liability would be one for a pure wrong to recover damages caused thereby. This action was not commenced or tried upon this theory, and there is a finding that Parshall "in all his dealings with the plaintiff, and in his use of the bonds and coupons acted in good faith," and this finding cannot be said to be absolutely unauthorized by the evidence. The liability of Parshall cannot, therefore, be based upon this theory, which involves bad faith and an intentional wrong. Second. The other theory is that the bonds were issued without any authority of the town, and that Parshall had no authority to act as agent of the town or receive or pay out the proceeds of the bonds on its account. To sustain this theory it was incumbent upon the town to assert and maintain that the proceeds of the bonds belonged to it. How did the proceeds of the bonds come to belong to it? If it repudiates the whole transaction in making and issuing the bonds, then the proceeds of the bonds did not belong to it, and the liability of Parshall could only be based upon the first theory. It can only claim the proceeds of the bonds by recognizing their validity, and thus ratifying the agencies through which they were made, negotiated and the proceeds obtained. It cannot repudiate the bonds and claim the proceeds of them. It matters not that it is forced by the decisions of the Federal courts to pay them. It could pay under compulsion and yet repudiate the bonds, and all the agencies through which they were issued, and then sue for the damages it suffered upon the theory first mentioned. But an action to recover money received for the bonds proceeds necessarily upon the assumption of the validity of the bonds. *Page 584 It matters not that the court has found that all the proceedings to bond the town were absolutely null and void. The plaintiff has no benefit from this finding, so long as it is in court claiming the proceeds of the bonds, and thus attempting to maintain this action upon the second theory above mentioned. We must, therefore, assume that the town commissioners were properly appointed, that they were authorized to employ Parshall as agent, that the agreements they made with him were valid, and hence the main contention upon the argument before us must fail. It is further claimed that certain errors were committed by the court below upon the accounting, and that Parshall was allowed certain credits to which he was not legally entitled. We have carefully examined the accounts, and so far as we can perceive, the accounting as finally confirmed was conducted upon proper principles, and no error was committed to the prejudice of the plaintiff. The judgment should be affirmed.