State Ex Rel. County of Greene v. First National Bank of Snow Hill

*440 Stacy, 0. J., after stating tbe case: Tbe office of a demurrer is to test tbe sufficiency of a pleading, admitting, for tbe purpose, tbe truth of tbe allegations of facts contained therein, and ordinarily relevant inferences of fact, necessarily deducible therefrom, are also admitted, but tbe principle does not extend to tbe admission of conclusions or inferences of law. Brick Co. v. Gentry, 191 N. C., 636; Board of Health v. Comrs., 173 N. C., 250; Wood v. Kincaid, 144 N. C., 393. With respect to tbe first cause of action, it is sufficient to say that tbe duties of tbe First National Bank of Snow Hill, as financial agent of Greene County, for tbe faithful performance of which tbe bond in suit was given, are to be ascertained by reference to tbe statutes defining tbe duties of a county treasurer. Neither tbe industry of counsel nor our own research has discovered any law which requires a county treasurer to pay interest on funds in bis bands as such. True, it is provided by O. S., 1393, subsec. 5, that if any part of tbe public funds in tbe bands of a county treasurer has been loaned out by him, be shall account for tbe interest received thereon, but this is not tbe interest for which tbe plaintiff sues. There is no allegation of any interest received on moneys loaned and not covered into tbe treasury of tbe county. Tbe action is for interest agreed to be paid, and not paid, on funds received by tbe financial agent of tbe county and held by it as such. As tbe law did not impose this duty upon tbe financial agent of tbe county, we cannot bold tbe surety liable on tbe bond in suit. Board of Education v. Bateman, 102 N. C., 52, 8 S. E., 882. Tbe liability of tbe bondsman is tbe only question presented by tbe appeal. Tbe fact that tbe principal went beyond tbe requirements of tbe law and agreed to pay interest on funds in its bands as financial agent, cannot enlarge tbe liability of tbe surety beyond that imposed by law and tbe terms of its contract of suretyship. Such liability is neither prescribed by statute nor nominated in tbe bond. Ins. Co. v. Durham County, 190 N. C., 58. It was never intended by tbe act of tbe Legislature, cb. 664, Public-Local Laws 1925, that tbe treasurersbip or financial agency of Greene County should be farmed out or let to tbe highest bidder. Tbe board of county commissioners was authorized and empowered, in its discretion, to abolish tbe office of county treasurer and, in lieu thereof, to appoint one or more solvent banks and trust companies as financial agent of tbe county to perform tbe duties of treasurer. Tbe second cause of action is likewise untenable as against tbe Fidelity and Deposit Company of Maryland. It is founded upon allegations of misfeasance on tbe part of tbe First National Bank of Snow Hill in tbe discharge of duties not required of it as financial agent of Greene County and not covered by tbe bond in suit. *441 It was no part of tbe duties of the county treasurer, or financial agent, as such, to handle the funds derived from a sale of the road bonds in question; but such funds, under 0. S., 3655, above set out, were to be deposited by the board of county commissioners in some solvent bank or banks, agreeing to pay the highest rate of interest on daily balances, to the credit of the county road commission, and subject to the orders of said road commission. The fact that the commissioners selected the First National Bank of Snow Hill as -such depository, without bond, as the statute required none, even though designated as the financial agent of the county, did not render the Fidelity and Deposit Company of Maryland liable on its contract of suretyship. If the said bank acted as agent of the board of county commissioners in handling the bonds in question, it did so as such agent, and not in its capacity as financial agent of the county. But it is contended that the bonds in question were received by the First National Bank of Snow Hill under color of its office as financial agent of the county and, therefore, it was charged with the duty of faithfully accounting for the same. In support of this position, plaintiff cites C. S., 3650, which is as follows: “In selling the bonds and in handling the funds derived from the sale of the bonds, and in turning same over to the bank or banks of the county hereinafter authorized to be the depository of such funds, the board of county commissioners, the county road commission, or the treasurer of the county sliall not be allowed any fees for handling such funds.” It is conceivable that this position might be tenable under a certain state of facts, but, on the present allegations, it is hardly permissible to infer that the bonds in question were delivered to the First National Bank of Snow Hill, as financial agent of the county, to be by it delivered to the purchaser, and the proceeds derived therefrom to be received by the financial agent of the county in its capacity as such, and by it to be delivered to itself as the designated depository of said funds. It is quite patent, from the allegations presently appearing of record, that in the handling of these bonds the First National Bank of Snow Hill was acting as the designated depository of the funds to be derived from a sale of the same. Board of Education v. Bateman, supra. Upon the record we think the demurrer, interposed by the Fidelity and Deposit Company of Maryland to the first and second causes of action, should have been sustained. Reversed.