Moore v. Magee & Ware

48 Miss. 567

• Court: Mississippi Supreme Court
• Decided: April 15, 1873
• Status: Published

Opinion

SlMRALL, J. :

The general rule is, that an agent or officer, who contracts on behalf of the public or the government, incurs no personal responsibility. Story on Agency, §§ 304-306. If, in a particular instance, it be claimed that the intention was to create a personal liability, the proof ought to be clear and full that such personal assumption was contemplated. Copes v. Mathews, 10 S. & M. 401. If the other party does not know that the agent or officer is acting for the public, it may be inferred that the credit was given personally. Swift v. Hopkins, 13 Johns. 313.

Moore, the defendant, applied to Magee & Ware, the proprietors and publishers of a newspaper, to advertise the sale'of the delinquent lands for taxes. It was well known to them that Moore was at that time sheriff and tax collector of Lawrence county.

Moore, in this behalf, was acting in accordance with the Code of 1857, art. 37, p. 80. It was made his duty to advertise delinquent lands for sale. If individuals would not bid the amount of taxes, the lands were directed to be struck off to the state as purchaser. The statute is, “ 15 cents for each legal subdivision of land advertised shall be allowed the publisher, which fees shall be charged in the bill of costs and collected by him (sheriff) in the bill of costs, for the use of the persons entitled.”

If the lands are bid off by an individual, he must pay the taxes and costs, including the fees for advertising) if no individual will bid that much, then the state becomes the purchaser, pays or credits the tax collector the advertisement fees and other expenses incident to the sale; who, in the language of the act, thus “ collects the same for the use of the persons entitled thereto.”

If the law be pursued by the tax collector, the sale must realize enough, to satisfy taxes and all expenses of sale.

The account exhibited in evidence charges the rates fixed by law. It was well known to the plaintiffs that Moore was sheriff, and that the advertising was for business incident to his office as sheriff and tax collector. Before these sales were made, Moore was removed from office (in 1871) and one Waddell was appointed his successor, whose duty was to complete what was unfinished by Moore in respect to the collection of taxes. The statute charges the costs of sale upon the delinquent lands, and out of the sale directs the sheriff to collect them and pay them over to the publisher of the newspaper. We think that the sheriff who is in office at the time of the sale, and who collects the fees, is charged by the statute with the responsibility of paying them over to the persons entitled ; and being’ under that legal duty, the law raises an assumpsit against him. The statute indicates the source from which the sheriff receives the money, and authorizes him to collect it for the benefit of those entitled. When, therefore, a sheriff advertises lands, the publishers will be esteemed as looking to the incumbent of office at the times the sales and collections are. made as the person liable to him. He is the officer or trustee under the statute to receive the money and pay it over. Moore, who had been removed-, had no further authority; but Waddell, who came in as his successor, and made the sales and realized the money, was liable to the plaintiffs.

Magee says in his testimony that “ he looked to Moore individually, but that Moore said nothing in regard to binding himself individually.”

In our estimation, the case is peculiar, determinable by a fair and reasonable interpretation of the statute, not falling precisely within the principle of agents contracting on behalf of the government or public; nor, again, is it controlled by the rule applicable to agent and principal as between private persons. The sheriff and tax collector has several duties in the exigencies of this business —to enforce taxes by sales of land — he may advertise, and then vacate the office by death, or removal (as in this case). If so, his successor takes up the business at the ¡Joint where the predecessor left it, and carries it on to completion by sale. He is charged with all the liabilities and duties in respect to the sale and the funds arising from it, as was the predecessor, if he had completed it. It follows, therefore, that Waddell was charged by law with the duty of collecting and paying the plaintiffs’ charges for advertising, and the suit should have been against him and not against Moore.

It is not proved that Moore assumed, or intended to assume, any greater repsonsibility than the statute put upon him. It is not shown that Magee informed him that he “ looked t'o him individually.” If the plaintiffs intended to bind Moore personally, beyond the scope of his liability under the statute, he ought to have been advised of it. Moore not having made the sales and received the money for account of the plaintiffs, is not responsible.

We cannot notice the instructions which were refused to be given the defendant’s prayer, because no exception was taken.

Judgment reversed, and cause remanded, and venire facias de novo awarded.