Gaussen v. United States

ERROR to the Circuit Court of the United States for the District of Louisiana.

This is an action by the United States against Bessie Elgee Gaussen, executrix of John K. Elgee, deceased, who was one of the sureties on the official bond of Thomas Barrett, collector of the customs for the district of New Orleans, in the State of Louisiana. It was before this court at its October Term, 1873, when the judgment of the Circuit Court was reversed and the case remanded for a new trial. United States v. Gaussen, 19 Wall. 198. The mandate was filed in the court below, Jan. 27, 1875. The bond sued on bears date July 6, 1844, and is conditioned as follows: 'Now, therefore, if the said Thomas Barrett has truly and faithfully executed and discharged, and shall continue truly and faithfully to execute and discharge, all the duties of the said office, according to law, then the above obligation to be void and of none effect; otherwise, it shall abide and remain in full force and virtue.'

The United States claimed that the various adjustments of Barrett's accounts by the accounting officers of the Treasury, from July 25, 1844, to Oct. 12, 1845, showed a balance due by him of $41,376.64, and that his failure to account for and pay over that amount, received by him in his official capacity, constituted a breach of the condition of his bond. The defendant answered,--

1. By a general denial.

2. "That if the bond sued on was ever executed, delivered, and took effect, which is not admitted, then defendant avers that said bond, after its execution, was rendered void and null, so far as said decedent was concerned, for this, that subsequent to its date and during the period of the term of office of Thomas Barrett, as collector of the port of New Orleans, the United States imposed on and exacted of him the performance of duties and the assumption of responsibilities in regard to the receipt, custody, and disbursement of the moneys received in his said capacity as collector aforesaid, different and variant from those duties and responsibilities in that regard legally incumbent upon him as collector aforesaid, at the date of said bond, under the law then existing and in force; that during his said term of office said Barrett was dispensed by the United States from his duty and obligation of paying certain moneys, received by him in his said capacity, to the United States, in the mode required by law, and in lieu thereof was required by the United States to expend and disburse, and under its orders he did actually expend and disburse, during his said official term, a large portion of said moneys, by payments made to collectors and surveyors of other collection districts, and to various other officers of the government; that said Barrett was required by the United States to expend and disburse, and he did, in accordance with its orders, expend and disburse, during his said official term, a large portion of said moneys for the construction of the new marine hospital, and for the maintenance and supply of existing hospitals and light-houses, and of vessels of the revenue and naval service, and for other purposes entirely beyond the scope of his duties as collector aforesaid, and as fixed and defined by law; that said Barrett was required by the United States, in his said capacity as collector aforesaid, to receive and disburse, and did actually during his said official term receive and disburse, under its said requirements, large sums of money which he was not required by law to receive and disburse in his said capacity as collector;-all of which appears by the account filed by the plaintiff herein. And defendant charges that the duties and risks and responsibilities of said Barrett as collector aforesaid, without the consent of said decedent, were varied, enlarged, and changed by the United States, subsequent to the date of said bond and during his official term, whereby the liability of said decedent as surety on said bond, if ever it existed, was avoided and discharged.

3. "That the said Thomas Barrett departed this life about the year 1846, in New Orleans, having a large real and personal estate, consisting in property and assets, more than sufficient to pay the amount of plaintiff's demand; that if the United States had a valid claim against said Barrett, it had the right of priority of payment on such property and assets, which it neglected to enforce, and lost; that upon said bond are signatures which purport to be those of Fran ois Delery, Sylvain Peyroux, Lucien Hermann, M. B. Cantrelle; that all of said parties are dead; that each died leaving a large and valuable estate, more than enough to pay the amount claimed in this suit; that if the United States had a valid claim against said Barrett and said Fran ois Delery, Sylvain Peyroux, Lucien Hermann, and M. B. Cantrelle, it had the right of priority of payment of said demand out of each and all of said estates, which it neglected to enforce, and lost, whereby the liability of said J. K. Elgee, if it ever existed, was discharged."

The court, on motion of the United States, ordered that the part of said answer which is included within brackets be struck out, on the ground that, if true, it was insufficient, as pleaded, to bar the action.

The defendant requested the court to give the following instructions in relation to matters which the evidence tended to establish:--

1. 'That if the jury find from the evidence that the Secretary of the Treasury required the said Barrett, while collector, to use the moneys received by him as collector, in the redemption of treasury notes of the United States, that such requirement was an important and material change of the duties, functions, and employment of the said Barrett as collector, as regulated by law, and, whenever made, discharged the sureties on his official bond from all liability for his subsequent official conduct.'

2. 'That while Barrett, the principal in the bond sued on, held the office of collector, no law imposed on him the duty of making disbursements for any marine hospital or for the light-houses or revenue-cutters, and that such duties and disbursements were extra-official as to the office of collector, and that the sureties on the bond sued on are not responsible for any fault, neglect, or misconduct of the said Barrett in respect to such extra-official disbursements; and if the jury find from the evidence that said Barrett, while he held said office, was employed by the superior officers of the department to make disbursements for the marine hospital, light-houses, and revenue-cutters, and that the said Barrett was furnished money directly from the treasury of the United States, or from other sources than the proper receipts and collections of the office of collector, that, in order to charge the defendant with the money thus furnished, or any part thereof, it is incumbent on the plaintiff to prove that the money thus furnished, or such part thereof, was necessary to cover the disbursements proper to the office of collector, or was furnished for that purpose.'

3. 'That if the jury find from the evidence that the Secretary of the Treasury caused to be remitted to Thomas Barrett, while collector, money out of the treasury of the United States, and employed him as disbursing officer of the government in defraying the expenses of the light-house service, of the erection of the marine hospital at New Orleans, and in other matters not connected with his official duties as collector, as regulated by law, and extra-official as respects the office of collector, and in the accounts between the government and the said Barrett, filed with the petition, there are mixed and blended together on the debit side of the account against said Barrett the moneys received by him officially for duties on imports and from other sources from which he was by law authorized to collect, and moneys remitted to him directly out of the treasury of the United States; [that, in order to recover the balance brought down in the present action, it is incumbent on the government to prove to the satisfaction of the jury that the said balance brought down resulted from the failure of the said Barrett to account for the funds which came into his hands, as collector, and within the scope of his official duties in that office, and his failure to perform his duty in respect to such funds, and not from his failure to account for funds received from the treasury for extra-official purposes, and his failure to perform his duty in respect to such funds.']

These instructions the court refused to give, except so much of the last as is embraced within brackets. The defendant excepted.

There was a verdict for the plaintiff for $36,815.86, with interest thereon from Oct. 12, 1845; and judgment having been rendered thereon, the defendant sued out this writ, and here assigns error as follows:--

The court below erred,--

1. In striking out parts of the answer of the defendant.

2. In refusing the defendant's first request.

3. In refusing the defendant's second request.

4. In refusing the defendant's third request.

Mr. William D. Shipman and Mr. William W. MacFarland for the plaintiff in error.

The contract of a surety is strictissimi juris, and cannot be extended by implication beyond the fair terms of his engagement. Ludlow v. Simonds, 2 Cai. (N. Y.) Cas. 1; United States v. Tillotson, 1 Paine, 305; Miller v. Stewart, 9 Wheat. 680. The fact that the United States is the obligee of the bond does not change the rule applicable to his contract. United States v. Kirkpatrick, id. 720. Therefore the English doctrine, that prerogative overrides all equities, has no place in American jurisprudence.

Ordinarily, the acts of a private person or a corporation, obligee of a bond conditioned for the faithful performance of a duty, which discharge the surety, will equally discharge him where they are done by the United States under the same circumstances. United States v. Hillegas, 3 Wash. 70 United States v. Kirkpatrick, supra; United States v. Tillotson, supra.

The answer of the defendant below, which was struck out by the court, was competent, under the rules of pleading prevailing in Louisiana. Lawson et ux. v. Ripley, 17 La. 238; Frierson v. Irwin, 5 La. Ann. 531; Waterman v. Gibson, id. 673; Ralston v. Barclay et al., 6 Mart. (La.) 649; Ory v. Winter, 4 Mart. (La.) N. S. 277; Tracy v. Tuyes et al., id. 354.

The court should have charged the jury as requested in the defendant's first prayer. If the new duty imposed by the Secretary of the Treasury upon the collector, to apply the moneys received by him in the redemption of treasury notes, had been inserted in the bond without the consent of the surety, the latter would have been discharged from all liability. Miller v. Stewart, supra.

A new and important change was thereby made in the duties of the office not contemplated by the parties to the bond when they executed it.

The refusal to give the instructions set forth in the second request was error. Dedham Bank v. Chickering, 4 Pick. (Mass.) 314; Legh v. Taylor, 7 Barn. & Cress. 491; United States v. Powell, 14 Wall. 493; United States v. Singer, 15 id. 111; Converse v. United States, 21 How. 463.

If any part of the third request was proper, the whole was. The learned judge virgually admitted the legal correctness of the propositions embodied in the request, by charging the conclusion which they embrace; but he rejected the premises inseparably connected therewith, which furnished the only subject-matter to which the jury could intelligently apply that conclusion.

The Solicitor-General, contra.

MR. JUSTICE STRONG delivered the opinion of the court.