Barney v. Buena Vista County

Day, J. 1. pleading : ment. in ra The demurrer should have been overruled. I. The petition alleges that the plaintiff, in making a payment into the treasury of defendant, presented a war-rant for $225 more than the payment he desired to make, and that this warrant was canceled by the treasurer of defendant. The defendant thus became possessed of property'of plaintiff greater by $225 than the credit plaintiff received. The plaintiff thus became entitled to a certificate of overplus from the treasurer. Rev., § 362. Instead of issuing this certificate the treasurer delivered to him two instruments in writing purporting to be the warrants of the defendant. These were presented for payment, and payment was refused. It is for this balance now in the possession of defendant, belonging to plaintiff, that plaintiff sues. The action is not brought upon the first warrant. That is properly in the possession of defendant and is ' canceled. The action is not upon the other two warrants. They were put in circulation by the treasurer without authority, and the plaintiff cannot maintain-an action thereon. It is clear that the action is in the nature of one for money had and received by defendant for the use of plaintiff. Hence, it is not necessary that any copy of the warrant should he attached to the petition. This is required only when the action is founded on a writing. Rev., § 2920. 2. officer : presumptions. And for the same reason it is not necessary to allege that. it was issued by defendant, or by officers authorized by defendant. It was property owned by plaintiff, an(j jiag peeil transferred to the defendant, for which transfer plaintiff has received consideration only in- part. If the treasurer had no authority to receive from [264] plaintiff tlie warrant of any other county, then the presumption is that in this regard the officer has discharged his duty, and that the warrant is that of the defendant, and the burden of alleging and proving the contrary is on the defendant. The foregoing considerations dispose also of the second ground of demurrer. The point insisted upon in the argument, that plaintiff cannot maintain this action without surrendering the two county warrants received by him, is not presented by the demurrer, does not appear to have been urged in the court below, and-hence-cannot avail here. 3. master and bfm/oT'm^ ter: county, II. The next point made by the demurrer is, that the defendant is not liable for the wrongful acts of the treasurer as alleged in said petition. This cause is altogether different from one where it is sought to a c01mpy ]pap,ie in damages for the willful acts of its treasurer, from which no benefit has accrued to the county. It is clear that the county could not, in such case, be made liable. Estep v. Keokuk County, 18 Iowa, 199. This is upon the general principle that a master is not liable for the willful and malicious acts of the servant, nor for those entirely beyond or aside from his service. The act of receiving and canceling the warrant in this case, however, was directly within the scope of the treasurer’s duties. Bev., §§ 360, 362. It was beneficial to the county, for by it a debt owing to the county was received, and an indebtedness of the county upon its warrant was canceled. It is not averred that the act of the treasurer in issuing other warrants instead of a certificate of over-plus, was willful, and there is no presumption that it was so. It is much more likely that it resulted from a misapprehension of the law. By this act the defendant has obtained the cancellation of a warrant to the extent of $225 belonging to plaintiff, for which plaintiff has received no consideration. [265] It is for this alone that plaintiff sues. We know of no rule of law or just reason why defendant should not re-imburse the plaintiff the amount thus received. Corporations are liable in the same manner as individuals, for the action of their servants, touching their business. Estep v. Keokuk County, 18 Iowa, 199, and cases cited. Reversed.