Potter v. Hiscox

Dutton, J. This action is brought on a guardian’s bond to recover the amount of a note which had been distributed to a minor, and which he claims was lost through the neglect of the guardian. The principal difficulty in the case arises from the state of the record. The defendants pleaded general performance. The plaintiff in his replication sets out the real [518] cause of action, alleging specially the neglect of the guardian in not collecting the note, and that the guardian had never accounted to the court of probate nor to himself for the note, and had never paid over to him the amount of it. The defendants rejoin in the first place, that the facts alleged in the replication are not true. This issue involved all the questions that were raised on the record in the case. For if, as was claimed, the record of the court of probate with the accompanying evidence proved conclusively that the guardian had fully accounted, the defendants must have prevailed on this issue. Instead of adopting this course the defendants put in a second rejoinder, alleging that twice during the time of the guardianship the guardian exhibited to the court of probate a just and true account of his guardianship to that time, and well and truly accounted for the note in question ; and that after the plaintiff came of age he again exhibited to the court of probate a just and true account of his doings as guardian, and well and truly accounted for said note; that this was in the presence of the plaintiff, and that the court of probate examined and investigated said account and allowed the same, and that these decrees of the court of probate were still in full force. The plaintiff in one surrejoinder took issue on these allegations, and then entered another, alleging that by consent of parties the question of the neglect of the guardian as to this note was not tried or heard by the judge of probate, on which the defendants took issue. Whether the rules of pleading would allow such a two-fold surrejoinder, we are not called upon to decide, as no exception was taken to the proceeding, and we do not consider the issue formed on the last surrejoinder material to the decision of the case. The jury found the first issue for the plaintiff, and the second for the defendants. In other words they found that the guardian had been guilty of neglect in not collecting this note, that he had never accounted to the court of probate for the proceeds of the note, and had never accounted to the plaintiff nor paid over to him the proceeds of the note. But they further found that the guardian had accounted to the court of probate for his doings as guardian and for this note. The record shows that [519] there were no questions as to the admissibility of evidence raised in the case. Each party was permitted to sustain his" allegations by such evidence as he introduced. When the plaintiff offered evidence to prove that he had lost the note in question through the culpable neglect of the guardian, the defendants did not attempt to estop him by the previous proceedings of the court of probate. So that the simple question is, what judgment ought to be rendered on the facts found by the jury. The defendants claim, in the first place, that no judgment can legally be rendered against them, because they say the verdict of the jury taken together is inconsistent and repugnant in itself; that it finds in the first place that the guardian did not account for the note, and then that he did account for it. They claim therefore a decision of the case in their favor. If there was such inconsistency and repugnancy, it would be no ground for rendering a judgment for the defendants. It would show merely a mis-trial, and the case would necessarially be sent back to another hearing. Whether there may not be an inconsistency to some extent, we do not deem it necessary to scrutinize the record closely to ascertain. The jury have found the second rejoinder of the defendants true, and they are entitled to the benefit of all the allegations in it which they have distinctly and fully made, and no more. If they have not fairly and unequivocally answered the allegations in the plaintiff’s replication, it is their own fault, or it was because they could not. The presumption is against the pleader, and nothing is to be inferred in his favor by argument or implication. The plaintiff distinctly alleged that the note in question had been' lost by the negligence of the guardian, and that he had not accounted to him for the avails of it after he had come of age and had not paid them over to him. The defendants in answer to this say that the guardian exhibited to the court of probate an account of his “ doings ” as guardian. Does this necessarily embrace an account of what he neglected to do ? We can not infer from this allegation, or from the, allegation that the guardian had accounted for the note, that the attention of the court of [520] probate was directed at all to the misconduct or want of care of the guardian by which the note had become worthless in his hands. Again, one great object of a bond is to secure to the ward, after he comes of age, the receipt of his property from the guardian. The plaintiff alleges that the guardian never paid the avails of this note over to him. The defendants do not answer this allegation at all. They do not say that he ever delivered or offered to deliver the note itself to the plaintiff. If without any fault on his part the note could not have been collected, this would have been his proper course, and would have saved him from liability. The rendering a correct account to a judge of probate, and having it approved by him, is not all that is required of a guardian. The court of probate does not ordinarily find or record the fact that the guardian has delivered the property over to the ward. He adjusts the account, and ascertains the balance or amount of the property left in the guardian’s hands. The guardian then delivers this over and takes a discharge from his ward, who being then of full age is competent to give it. If all the allegations in the surrejoinder are taken most strongly in favor of the defendants, the replication in this respect is not answered. We see nothing objectionable in the charge of the judge. It would not answer to allow a guardian to retain in his hands, professedly as such guardian, the note of his ward due from the inhabitant of another state, and have the charge of it, so that no one else could collect it, and then avoid all responsibility for its loss on the ground that he could not act officially out of the state. We are not sure that any one acting in a private capacityand pursuing such a course could not be held liable. We see no ground, either for a new trial, or for an arrest of the judgment of the superior court. . In this opinion the other judges concurred.