PIERRE PRIET et al., Respondents, v. JAMES DE LA MONTANYA et al., Appellants

[No. 11531. In Bank. July 31, 1890.] PIERRE PRIET et al., Respondents, v. JAMES DE LA MONTANYA et al., Appellants. Official Bond of Treasurer — Liability of Sureties — Misappropriation of Funds—Illegal Payment under Dupont Street Improvement Act — Rights of Lessee under Substituted Warrant.—Where the treasurer of the city and county of San Francisco, in violation of his official duty, paid a warrant illegally presented by the owner of a lot taken for the improvement of Dupont Street under the act approved March 23, 1876, after another warrant payable to the owner or owners of the same lot had been su bstituted therefor by the street commissioners, upon discovery that another person owned a leasehold interest in the lot, and such payment was made out of money which the treasurer had set apart for payment of the substituted warrant, such illegal payment was a misappropriation of the fund so set apart, for which the sureties on his official bond for the term in which the payment was made are liable to the owner of the leasehold interest for any deficiency in payment therefor caused by exhaustion of the street fund. Id. — Exhaustion of Street Fund during Second Term. —The fact that the street fund was exhausted during the second term of the treasurer does not relieve the sureties on his official bond from liability for misappropriation of the fund specially appropriated to the payment of such substituted warrant during the first term, it not appearing that the amount was made good by the treasurer, or that there was any misappropriation of funds during the second term for which his sureties for that term could be made liable. Id. — Law of Case. —The decision on a former appeal, in an action by the same plaintiff against the treasurer to compel payment of the substituted warrant, is tile law of the case upon appeal in a second action by the same plaintiff against the sureties on his official bond to compel payment of the deficiency. Appeal from a judgment of the Superior Court of the city and county of San Francisco, and from an order denying a new trial. The facts are as follows: Defendant Hubert was treasurer of the city and county of San Francisco from December 6, 1875, until December 6, 1877, and before entering upon the discharge of his official duties gave the bond in suit, upon which his co-defendants are sureties. Upon the expiration of his term of office he succeeded himself by re-election. Under the provisions of an act entitled “An act to authorize the widening of Dupont Street, in the city and county of San Francisco,” approved March 23, 1876 (Stats. 1875-76, p. 443), he, as such treasurer, received from the sale of Dupont Street bonds the sum of $966,950 to the credit of the Dupont Street fund. A lot on Dupont Street, belonging to one David Hunter, in which plaintiffs had a leasehold interest, was, pursuant to the act, taken for the improvement of the street, and the board of commissioners awarded the sum of $10,932, as damages for the taking of the lot, to David Hunter, as owner; and on April 20, 1877, issued to him, in his favor, a warrant, numbered 92, for the amount. Hunter, seven days thereafter, indorsed these words, “Received payment. David Hunter,” upon the warrant, and delivered it to Henry S. Tibbey, the secretary of the board of commissioners. At the time the warrant was issued, the board was unaware of the interest of plaintiffs in the lot, but subsequently, on July 9, 1877, having discovered plaintiffs’ claim of interest therein, it drew another warrant, numbered 114, for the same amount, payable to “ the owner or owners ” of the lot taken, and in compliance with section 15 of the act of March 23, 1876,. deposited the same with the county clerk, and notified defendant Hubert, as treasurer. Both warrants were payable out of the Dupont Street fund. The first warrant, Ho. 92, was afterwards illegally presented át the treasurer’s office by Tibbey, and illegally paid to him by a deputy of the treasurer. The plaintiffs, in order to have determined the proportion of the amount so awarded that they were entitled to under said section 15 of the act, brought an action against Hubert, as treasurer, T. H. Reynolds, as county clerk, and David Hunter, and prosecuted the same to final judgment, which was entered on the fifth day of January, 1883, in accordance with the decision of this court rendered therein on appeal (Priet■ V. iluberte 62 Cal. 9), in which decision it was also determined that the payment of warrant No. 92 ivas no defense to the payment of warrant No. 114. On the day after judgment was entered, the then treasurer paid on warrant No. 114 the sum of eighteen hundred dollars, being all that remained in the Dupont Street fund. This amount was divided pro rata between plaintiffs and Hunter, —the former receiving the sum of $178, and the latter the remainder, leaving the sum of $1,472, with interest thereon, together with $100 as costs in that action, due the plaintiffs, to recover which this action was brought against Hubert and his sureties. Plaintiffs had judgment, from which, and an order denying anew trial, they appeal. Mastick, Belcher & Mastick, for Appellants. D. H. Whittemore, for Respondents. [MAJORITY — Fox, J.] Fox, J. After a careful re-examination of this ease in Bank, we are satisfied that inasmuch as this court did decide in Priet v. Hubert, 62 Cal. 17, that the treasurer paid to Tibbey, on warrant No. 92, in “ violation of his official duty, and with full knowledge that 92 represented the amount of damages allowed for the property to which the present plaintiff asserted a claim, and that he paid 92 with the money which he himself had set apart for the payment of 114, then on deposit with the county clerk to await the determination of this action,” and that such pajnnent was “no more a payment to Hunter than would have been a payment of the sum to a stranger, or an appropriation of it by the treasurer himself,” which decision is res ad judicata, and has become the law of the case as to that payment, as against the defendant Hubert; and inasmuch as such payment was a misappropriation of the fund for which the sureties would be liable if the amount was not made good by the treasurer himself, and there is no proof that he ever did make it good, nor any proof or allegation that there was any misappropriatiou of the funds of the treasury during Hubert’s second term in the office of treasurer, there is no ground for disturbing the judgment of the court below in this case. It is therefore ordered that the judgment and order appealed from he affirmed. Sharpstein, J., Thornton, J., McFarland, J., Beatty, C. J., and Paterson, J., concurred.