United States v. Curtis, 100 U.S. 119 (1879)

U.S. Supreme Court

United States v. Curtis, 100 U.S. 119 (1879) United States v. Curtis

100 U.S. 119

ERROR TO THE CIRCUIT COURT OF THE UNITED

STATES FOR THE DISTRICT OF MASSACHUSETTS

Syllabus

The United States, in an action against the sureties of a paymaster in the army, assigned as the breach of the conditions of his official bond that he did not, when thereunto required, refund $3,320.02, with interest. He rendered his account Nov. 30, 1865, when he left the service, and shortly thereafter died. On the subsequent adjustment of his account at the Treasury Department, that sum was found to be due at said date. No demand therefor was made of his personal representatives, and the sureties had no notice of the claim before the service of the writ in the action. The adjustment was the only evidence of the sum due. Held that the United States is entitled to recover that sum, but with interest only from the date of such service.

This was an action of debt brought by the United States on a joint and several bond in the penal sum of $20,000, executed May 30, 1862, by Oliver Holman and his sureties, James O. Curtis and Joshua T. Foster, conditioned that said Holman, a paymaster in the army, should faithfully discharge his duties as such; that he should regularly account, when thereunto required, for all moneys received by him, and "refund at any time when thereunto required any public moneys remaining in his hands unaccounted for." The only breach assigned in the declaration is that he did not refund when thereunto required the sum of $3,320.02, with interest.

Holman, although named in the writ, was not living when

Page 100 U. S. 120

it was sued out. Curtis and Foster were duly served, and by counsel entered their appearance.

It appears from an agreed statement of facts that Holman went out of office Sept. 30, 1865, and on that day rendered a final account showing nothing due to the United States or to himself. One credit in that account is for "$2,658 stolen, as per report to paymaster general Aug. 7, 1865."

On a final adjustment of the account made March 18, 1872, after the death of Holman, the second auditor found that there was due to the United States $3,320.02. No part of this amount has been paid. It does not appear that any demand therefor was made of Holman's personal representatives, and the sureties had notice of the existence of the claim only by the service of the writ. To enable them to petition for relief in the Court of Claims under the Act of May 9, 1866, 14 Stat. 44, the cause was continued from term to term. That court, finding that Holman was not without fault or neglect, dismissed a petition wherein they prayed for a decree declaring that the amount of the funds stolen should be entered as a credit in the settlement of the account. The sureties then made default, but appeared at the hearing on the assessment of damages, when the agreed statement was filed. The court thereupon entered judgment in favor of the United States for the said sum of $3,320.02, with interest thereon at the rate of six per cent per annum from Oct. 15, 1872.

Each party removed the case here, the United States assigning for error that interest should have been computed from Nov. 30, 1865, and the defendants, that the court erred in awarding against them any sum other than one merely nominal as damages.

Page 100 U. S. 123

MR. JUSTICE MILLER, after stating the facts, delivered the opinion of the Court.

To the error assigned by the defendants it is sufficient to say that having been served with the writ and appeared by counsel, and having thereafter suffered a voluntary default, that default was a confession of indebtedness on account of the breach of the bond assigned, namely the failure of Holman, their principal, to pay over the moneys in his hands when thereunto required, and of such demand as imposed upon his sureties the obligation to pay. There remained only the question of the amount due from him on account of moneys in his hands, and of this the auditor's statement of account was evidence which was uncontradicted. There is, therefore, no error of which they can complain.

The United States, however, asserted a right to interest on the amount found due by the auditor from the date at which Holman ceased to be paymaster, namely Nov. 30, 1865.

Without attempting to decide any other case but this, we are of opinion that the breach of the bond on which the defendants were sued did not occur until Holman, his legal representatives, or his sureties, were required to refund moneys in his hands -- that is until some notice was given that a definite sum in his hands had by the proper accounting officer been found to be due to the United States. Of course, until there was a breach of the condition of the bond which rendered him or his sureties liable, there could be no right to interest on account of such breach.

The agreed statement shows that no such statement was made or rendered to Holman in his lifetime, or any demand to refund. Nor does it appear that any such statement was rendered to his executors or a demand made of them or of the sureties, except by the service of the writ.

We are therefore of opinion that the earliest moment at which any one became liable on account of the breach of the

Page 100 U. S. 124

condition of the bond now sued on was the service of the writ on the defendants, and that such service was a sufficient demand. The court properly allowed interest on that basis.

Judgment affirmed.