
    No. 832
    NEW AMSTERDAM CAS. CO. v. NORWALK (City) et.
    Ohio Appeals, 6th Dist., Huron Co.
    No. 195.
    Decided June 8, 1925.
    Judges Pardee, Funk and Washburn, 9th Dist., sitting.
    795. MUNICIPAL BONDS—Where treasurer of city permits auditor to take checks of money in payment for bonds and gives his receipt therefor, acts of auditor in receiving said checks become acts of treasurer and if checks are worthless bondsman of treasurer is liable.
   WASHBURN, J.

In 1923, Norwalk offered certain bonds of the city for sale and one H. B. Bennett filed with L. Snook, the auditor, a written proposal to pay the city a certain sum for the bonds, which proposal was later accepted and the bonds which were payable to bearer were duly signed by the proper officers of the city and were ready for delivery upon payment of the price bid.

Bennett appeared with a receipt for the treasurer, A. B. Terry, to sign, showing that the bonds had been “paid for by purchasers thereof in full.” Bennett then made out and signed checks payable^ to the city. Snook and Bennett went to Terry’s residence where he signed said receipt without seeing the bonds or the checks given for them.

Bennett took the bonds and delivered them with the receipt to a bona fide purchaser, and left for parts unknown. The checks which he gave were worthless.

The city brought suit in the Huron Common Pleas against the New Amsterdam Casualty Co. the bondsman of Terry, on his official bond, and a verdict was directed in favor of the city. The Casualty Co. prosecuted error and contended that the judgment was erroneous because the signing of said receipt was not an official act of Terry as treasurer; that it was not an act which he was required by law to do and therefore not within the terms of the official bond. The Court of Appeals held:

1. Bennett’s proposal of purchase having been accepted, there was a “debt due” the city from him and under the statutes the treasurer having undertaken the collection of the same it was his duty to demand and receive proper payment of same, and his giving a receipt therefor was one of the “ordinary duties of such” treasurer.

2. When Terry gave his receipt without demanding the money represented thereby and permitted Snook to hold the checks in lieu of money for payment of the bonds, he adopted the acts of Snook as his own and the holding of the checks by the auditor became the treasurer’s holding thereof.

Attorneys—Denman, Wilson, Miller & Wall, Toledo, for Company; Charles Suhr and G. Ray Craig, Norwalk, for City; Rowley & Carpenter, Norwalk, for Terry.

Note—OS. Pend. Opinion will be found in 3 Abs. 548.

3. By said acts Terry was within the scope of his bond.

4. Terry’s claim that acts of other officials contributed to cause the loss, or even that Bennett would have been successful in defrauding the city if he as treasurer had not committed the acts complained of, did not present a defense embracing an issue which he was entitled under the record in the case, to have submitted to the jury.

5. What did happen and not what might have happened, fixes the liability of the parties.

Judgment affirmed.  