Town of Pawlet v. Kelley

Taft, J. (1) The plaintiff town presented its claim against the insolvent estate of Kelley, the defaulting tax collector, and obtained a dividend thereon. The defendant Blakely, one of the sureties, who is defending this suit, insists that the town has thus chosen one of two inconsistent remedies and for that reason it cannot now pursue him as he was thereby discharged, citing Hartland v. Hackett, 57 Vt. 92; White v. White, 68 Vt. 162. There is no question concerning the rule. If a creditor has two remedies, inconsistent with each other, he has his election which to pursue, and if he adopts one, he is barred from pursuing the other. He cannot affirm a contract, and at the same rescind it for fraud or other reasons. If he has the right to enforce his contract by action of contract, or upon a rescission of the contract to maintain an action of tort for fraud, if he obtains judgment in contract, he waives the fraud. Palmer v. Preston, 45 Vt. 154. The court in Hartland v. Hackett, supra, may have erred in holding the remedies inconsistent, or it may have placed its decision upon the ground that the imprisonment of the debtor, was a quasi satisfaction of the debt. There is nothing inconsistent in a creditor pursuing the principal and the surety at the same time, both actions being based upon an affirmation of the contract. He may pursue both until he obtains satisfaction of his debt. This point is notwell taken. [401] In connection with it, it is further urged that the discharge of Kelley was a discharge of the surety, Blakely. The debt presented by the plaintiff against the insolvent estate of .Kelley, was one created by the defalcation of the latter as a public officer, a tax collector, and from this debt, Kelley was not discharged. Y. S. 2139. If he was, the defendant Blakely was not. V. S. 2140. (2) . It is objected that the defendant Blakely cannot be holden, for that Kelley was ineligible to reelection in 1893 and 1894, under Y. S. 3058, which forbids the reelection of a constable who refuses or neglects on or before the first day of March in each year, “to pay over all moneys collected by him to the treasury to which they belong, and settle his accounts with the treasurers.” It does not appear that at the time of the settlements in 1893 and 1894, there were any moneys in Kelley’s hands not paid- over, and he settled his accounts each year with the treasurer. The referee reports that certain amounts of the taxes were uncollected, or not paid, over, it does not appear which. If they were zmcollected, there was no prohibition upon his reelection. If the election was in violation of the statute, whether it would bar a recovery in this action, we do not pass upon, as it is unnecessary. (3) It is no defense herein that the selectmen included the unpaid highway taxes of 1891 and 1892 in the tax bill for 1893. If the taxpayer paid Kelley the amount of the tax, the money became the money of the town, and the surety liable if the collector did not pay it over. If the tax levy was invalid, it was no defense as to the non-payment of the moneys in fact collected. Turnbridge v. Smith, 48 Vt. 648. (4) It is objected that the selectmen changed the tax bills from time to time, and that the sureties should not be held liable for the mistakes of, and changes by, the plaintiff’s officials. The changes made as shown by the report, were corrections of errors in footings, and in other respects, and adding some taxes which had been omitted by the listers. [402] Accidental errors, and defects made in good faith, do not render a list void, as a basis of taxation. Spear v. Bramtree, 24 Vt. 414. (5) The surety was not harmed by the withdrawal of. the uncollected taxes in the hands of the collector, in the spring of 1895. It prevented any increase in the amount of defalcation. (6) The objection under this point is based upon assumed facts, viz: that the collector was ineligible, a void tax, and no proper assessment, and is not tenable, and (7) for the same reasons, point seven in the brief for the defendant, assuming there was no proper assessment, was not well taken. (8) Kelley during the year 1893, paid the defendant’s treasurer, by mistake, to apply on taxes of 1892, the sum of $529.27, in excess of the sum due. The error was not discovered until the hearing in this case before the referee, when the collector requested its application upon the rate bills of 1893 and 1894, and the plaintiff upon delinquent taxes for 1891, for which the defendant Blakely was not liable. The current of decisions in this State is, that when neither party makes an application of a payment, the law wall make such an application as it deems just and equitable. Pierce v. Knight, 31 Vt. 701. It is apparent that the money so applied by mistake upon the taxes of 1892, was the proceeds of the taxes for the year 1893, and it is just and equitable that that sum should be applied upon the deficit of that year. This exception of the plaintiff is not sustained. (9) It fairly appears from the report of the referee, that the taxes were legally assessed, the warrants duly issued, and that Kelley collected and withheld the amount shown by the referee’s report, and it will be presumed that the plaintiff paid the state and the state school tax to the proper authorities. There is nothing included in the report of the referee, save money collected by Kelley, and not paid [403] over, and by the judgment the defendant is not made liable for anything for the reason of non-collection of taxes, and nothing appears in the case which made it the duty of the town treasurer to notify the surety of any misapplication of the funds of the town, or that he had paid any funds to the town without making an application thereof. This disposes of all questions made by the defendant ; The pro forma judgment is reversed, and judgment renderedfor the plaintifffor the amount shown due by the report with interest since the bringing of the suit. The exceptions of both parties being overruled neither is allowed costs in this court.