Inhabitants of Winthrop v. Soule

Barker, J. 1. The exception to the admission in evidence of the auditor’s report is not argued. The objection to the report that his conclusions were based on incompetent evidence, could not be taken for the first time at the trial. Briggs v. Gilman, 127 Mass. 530. Collins v. Wickwire, 162 Mass. 143. See Sullivan v. Arcand, 165 Mass. 364, 367. The report was properly admitted. 2. The remaining exception is to the rejection of a somewhat extended offer of proof on the part of the defendants. Speaking generally, this offer may be divided into two branches. One is that different officers of the town were grossly negligent in not discovering at an earlier date the defalcation of its collector of taxes. Each of the excepting parties now concedes that such negligence will not discharge the sureties upon the collector’s bond. See Amherst Bank v. Root, 2 Met. 522; Watertown Ins. Co. v. Simmons, 131 Mass. 85. The other branch of the offer [405] was to show that the officers of the town, in accordance with its by-laws, sent to the sureties on the bond copies of the town’s book for the years 1895 and 1896, containing printed copies of the reports of the town auditors and of the town treasurer for those years, which reports contained false statements as to the accounts of the collector of taxes, which false statements induced the sureties and the executrix of Horatio S. Soule to remain quiet and to take no steps to protect themselves from loss until the defaulting collector had transferred his property, and the lien for uncollected taxes was lost. We are of opinion that this evidence also was rightly excluded. In the first place the by-law did not authorize any other distribution of the town book than the leaving of a copy thereof at évery dwelling-house in the town four days at least before the annual town meeting and the delivery of twenty-five copies to the town clerk. Therefore the sending of copies to one surety in another town where he resided, and to another surety in the State of Florida where he then was, was not done in accordance with the by-law, and was not the a.ct of the town, but the unauthorized act of the selectmen, or of the person who so sent those copies. Aside from this, if we should assume that the copies were sent by authority of the town, the fair construction of the statements of the town book is not that contended for by the defendants. . The plain purpose of the publication was merely to give to those interested early information as to the tenor of the reports copies of which were contained in the book. By publishing copies of the reports the town could not be understood to assert that the statements of the reports were true, and to invite those who should receive the copies to rely upon the truth of those statements. The publication was rather an invitation to all persons interested to examine the truth of those statements, which in the nature of things must be dealt with by the town at its approaching annual meeting, to criticise and investigate, and to take such steps as they might desire to protect their own rights. As addressed to the sureties upon the collector’s bond, the true construction to be placed upon the sending to them of copies of the reports of the town officers was as if the town had said, “You are responsible for the due discharge of the [406] collector’s duty. He claims, by his report, to have made no default. The town auditors report that his accounts are correct. We invite you to look into the matter so far as you may be interested in it and to take such action as you may see fit.” Neither the sending of the copies, nor the subsequent acceptance of the reports by the town meeting, can be construed to be a representation by the town to the sureties that the statements of the reports were true, or an inducement to them to sleép upon their rights. The only representation made by the publication of the town book was that the several reports, copies of which it contained, were of the tenor therein set forth. This representation was not false, but true. If it is to be treated" as a statement of the town to the sureties, that is the only sense in which the sureties had a right to understand it, and it was neither intended nor calculated to deceive them, and does not bring the case within the principle of Baker v. Briggs, 8 Pick. 122, or of Carpenter v. King, 9 Met. 511. See Fitchburg Savings Bank v. Rice, 124 Mass. 72, 76. The evidence offered did not tend to show that the town had released any security which it held or negligently suffered any lien to expire. The whole contention at the trial was that the sureties by relying upon the truth of the reports of the town auditors and the town treasurer had lost the opportunity to protect themselves by discovering the defalcation and using means to secure themselves out of the defaulter’s property, and by collecting the taxes committed to him for collection. Exceptions overruled.