CHARLES A. WEIDLER and NATIONAL SURETY COMPANY, a Corporation, Appellants,
THE ARIZONA POWER COMPANY, a Corporation, Appellee in Cause No. 3077; THE BASHFORD-BURMISTER COMPANY, a Corporation, Appellee in Cause No. 3078; SOUTHWEST METALS COMPANY, a Corporation, Appellee in Cause No. 3079; VERDE TUNNEL AND SMELTER RAILROAD COMPANY, a Corporation, Appellee in Cause No. 3080
APPEAL from a judgment of the Superior Court of the County of Yavapai. Dave W. Ling, Judge, Judgment reversed and cause remanded, with instructions.
Mr. John A. Ellis, for Appellant Charles A. Weidler.
Messrs. Stockton & Perry, Mr. Stanley A. Jerman and Mr. Thomas P. Riordan, for Appellant National Surety Company.
Messrs. Cornick & Crable, for Appellees The Arizona Power Company and The Bashford-Burmister Company.
Messrs. O'Sullivan & Morgan, for Appellee The Southwest Metals Company.
Mr. Leo T. Stack, for Appellee Verde Tunnel and Smelter Railroad Company.
[39 Ariz. 391] LOCKWOOD, J.
These are suits upon the official bond of Charles A. Weidler as treasurer and tax collector
of Yavapai county. Since the essential facts and the rule of law to be applied are the same in all four cases, they were by mutual consent consolidated [39 Ariz. 392] for the purposes of the trial and on this appeal. There is no serious dispute as to the facts which we consider necessary to a determination of the cases, and we therefore state them as follows:
The first installment of 1925 state and county taxes became delinquent on the second day of November in that year. On or before that date the following named corporations, Arizona Power Company, Bashford-Burmister Company, Southwest Metals Company and Verde Tunnel and Smelter Railroad Company, hereinafter called appellees, delivered to Weidler their checks in the amount of their taxes then due, drawn by the first three appellees on the Prescott State Bank, and by the last-named appellee on the Bank of Jerome, and he or his deputies, upon receipt thereof, delivered tax receipts to appellees, and marked the taxes as paid upon the records of the county. At the time of their delivery and for at least three weeks thereafter, each of appellees had on deposit with the bank upon which the check was drawn sufficient funds to pay such check. Weidler's office was situated in the same city as was the Prescott State Bank and some thirty-five miles from the location of the Bank of Jerome. There was constant and uninterrupted mail and automobile stage communication between Prescott and Jerome daily all through this time.
On the 25th of November both of the drawee banks were closed by the state bank examiner as insolvent. From the time of the receipt of the checks up to the failure of the banks as aforesaid, Weidler never presented them for payment, and they never have been paid. Thereafter the board of supervisors of Yavapai county by appropriate resolution directed the treasurer to cancel the record of the tax payments, and the county brought suit against each appellee for the amount of its taxes. Appellees answered, [39 Ariz. 393] setting up the delivery of the checks aforesaid, and failure of Weidler to present them, and that they would have been paid if presented within a reasonable time to the drawee banks, claiming in effect that the delivery of the checks to Weidler was made to him in his official capacity as county treasurer, and that under such circumstances appellees were not liable to the county for said taxes. A demurrer to the answer was interposed by the county and sustained, and defendants declining to answer further, judgments for the amount of the taxes were entered in favor of the county, which judgments were duly paid.
About three years after the failure of the banks, appellees commenced these actions against Weidler and the surety on his official bond, claiming that his failure to present the checks for payment constituted negligence in the performance of his official duties for which he and his bondsmen were liable. Weidler defended on the ground that he had not been guilty of any wrongful act or default in the premises, that appellees had sustained no damage, and that the condition of the county's deposit account with the Prescott State Bank and the circumstances surrounding the transaction relieved him from liability. he further pleaded affirmatively that even had the checks in question been promptly presented to the drawee banks, they could and would not have been paid because those institutions were at the time of his receipt thereof insolvent.
The National Surety Company, a corporation, which was the surety upon Weidler's official bond, defended substantially on three grounds: (a) That as against it the causes of action were barred by the statute of limitations; (b) that in the receipt and handling of the checks in question Weidler acted as the agent of appellees, and not in his official capacity as county treasurer, and (c) that if he were in any [39 Ariz. 394] way negligent, appellees were guilty of contributory negligence in giving him checks instead of cash for the payment of the taxes. The cases were tried to a jury, but upon motion of appellees at ...