O'Neal v. Board of School Commissioners

Baetol, J., delivered the opinion of this Court. This is an action of assumpsit by the appellees against the appellant. The declaration contains, among others, a count for money had and received by defendant to the use of the plaintiffs, and for money found due plaintiffs on an account stated. In the bill of particulars filed, it is stated that “ the amount claimed is $417.57, balance due upon the levy, for the benefit of the school fund placed in the defendant’s hands for collection, as collector of the county taxes ²³⁸ for the year 1854, with interest thereon from six months after the date of the levy.” The facts of the case as disclosed by the proof are that in 1852 certain county charges or “ Court orders” were paid by the order of the County Commissioners, out of the school fund of the county.

In 1854, to reimburse the sum so expended, the sum of $1,400 was levied by the County Commissioners “ for the use of the school fund of Washington county The defendant was collector of State and County taxes for the year 1854, and, as such, collected the sum of $1,400 so levied “ for the use of the school fund.” Part of the money so collected was paid by the appellant, and this suit-was instituted to recover the balance. Five bills of exceptions were taken at the trial. The fifth exception will be first considered. This was taken to the rejection of six prayers offered by the defendant, which present the fallowing points or objections to the right of the plaintiffs to recover : 1st.

That the right of action was in the County Commissioners and not in the plaintiffs. , 2d; That there is no privity of contract between the parties. 3d. That the defendant having given his official bond for the faithful discharge of his duties as collector, an action of assumpsit cannot be maintained against him. 4th. That the money sued for was unlawfully levied. 1st. As to the right of the plaintiffs to sue.

By the Act of 1853, ch. 355, they were constituted public agents to receive and disburse the school fund of the county. By the 5th section, they and their successors were clothed with “full and complete power and exclusive control “ over this fund, and were empowered to have, demand, receive, hold, vest, and reinvest the same in behalf of and for the benefit of the primary schools, and for the promotion of education in the said county.” And all ²³⁹ money due and to become due and payable for the uso of tbe school fund, was made payable to their order. These provisions constitute the plaintiffs a quasi corporation, with capacity to sue for and recover any moneys belonging to, or appropriated for the use of the school fund, which they alone were entitled to receive, and over which they had the exclusive control. Overseers of the Poor of Pittstown vs. Overseers of the Poor of Plattsburgh, 18 Johns.

Rep., 407. 2d. As to the privity between the parties. It has been argued by the appellant that the fund in question, having been assessed by the County Commissioners among the public taxes, it rvas payable when collected only to them or their order : that the responsibility of the collector was to them, and not to the plaintiff's ; and in support of this position we have been referred to Williams vs. Everett, 14 East, 582, 596 ; Price vs. Easton, 4 B. & Ad., 433 ; Baron vs. Husband, 4 B. & Ad., 611 ; Howell vs. Batt, 5 B. & Ad., 504 ; Barlow vs. Brown, 16 M. & Wels., 126 ; French vs. Fuller, 23 Pick., 108 ; Weston vs. Gibbs, 23 Pick., 205 . These cases have been carefully considered, and without impugning the principles upon which they were determined, we are of opinion they are not applicable to the present case.

Here the proof shows that the levy of the sum in question was made by the County Commissioners for the use of the school fund, and was so designated on the levy list placed in the defendants’ hands. He assumed the duty of making the collection for the uses indicated ; and when the money was received by him, it enured to the use of the plaintiffs, who by law were entitled to demand and receive the school fund ; and thus was money received by the defendant for their use. No further order or action by the County Commissioners was necessary to vest the title in the plaintiffs or entitle them to sue. In Owings’ Exc’rs vs. Owings, 1 H. & G., 484, it was said that “a promise by ²⁴⁰ a debtor to his creditor to pay his debt to a third person, will not enable such third person