GILBERT, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The plaintiff in error brought this action against the administrator of the • agent for the Crow Indians, alleging the failure of the agent to account for certain money received by him as such officer. [770] The complaint set forth the total sums received by the agent, and the total disbursements by him made, showing a balance of $1,010.50, which it was alleged was unaccounted for. With the complaint was filed as a bill of particulars the account of the agent as settled by the Auditor of the Treasury Department and the certified transcripts from the Commissioner of Indian Affairs. This account showed that, on the expiration of the agent’s term of office, a balance was found due him of $157.50, and that a supplemental account was thereafter stated charging him with $1,168, alleged to have been received by him for the services of certain Crow Indians in hauling hay for one Browne from Dana’s Ranch to Fort Custer, in the fall of the year 1891, against which sum the agent was credited with the balance due him, leaving, according to the account, $1,010.50 which had not been accounted for. The administrator thus had notice that the balance of $1,010.50 sued for was claimed by the government to arise out of money which the agent had received for the services of the Indians in hauling hay for Browne in the fall of 1891. The administrator then filed his answer, and therein, among other defenses, alleged that the agent had satisfied and discharged the claim arising out of this transaction by the payment thereof. When the interveners appeared and answered they also had notice of the nature of the plaintiff’s claim. In their answer they referred to the specific item on which the balance was claimed in favor of the United States, and alleged that the money so received by the agent for the Indians was not $1,168, as charged in the account, but was the sum of $851.80, which they alleged was the money of Browne, and that the said agent paid the same to the Indians on account of their services in hauling hay for Browne. In support of that defense they produced in evidence the deposition of David G. Browne, who testified that the Indians had earned $851.80 in hauling hay on his account, and that he had paid that amount to the agent, to be by him paid to the Indians on account of their services. They failed, however, to prove that the agent had paid any of the said money, to the Indians, and the court found that he had received the money from Browne as alleged in said answer, but that no part- thereof has been paid to the Indians. Notwithstanding these findings of fact, the court denied a judgment to the plaintiff in error on the ground, as stated in the opinion, as follows:
“The government has no interest in the transaction, except incidentally from its obligation to compel its agent to deal honestly with the Indians. This interest, obligation, and right of the government is quite different from the right of a creditor to whom money is due. It is my opinion that the auditor committed an error in the adjustment of Wyman’s accounts, as shown by his statement of differences in charging this item of $1,168. Therefore the evidence offered by the government fails to prove the particular breach of the bond alleged in the complaint. If Wyman embezzled money which he should have paid to the Indians or returned to Browne, such conduct constituted a breach of the conditions of this bond, and the government is entitled to prosecute an action upon the bond to recover damages for the benefit of the injured individuals; but the rules of pleading cannot be disregarded, and a recovery cannot be permitted when the allegations of the complaint are not sustained by the evidence, although the obligor may be in fact guilty of a breach not assigned in the complaint. If this complaint [771] were amended so as to charge Wyman with misappropriating money earned by the Indians, still the government would not be in any better position, because the evidence introduced on the part of the government is, in my opinion, incompetent to prove such fact. * * * There is no evidence tending to prove that he received money from Browne, except a deposition of Browne taken at the instance of the defendant; büt, if a new issue were to be tried, this evidence would not be available for the government, because it would be unfair to use the defendant’s evidence, procured to disprove a different charge, to supply what is lacking to make a complete prima facie ease for the plaintiff.”
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GILBERT, Circuit Judge,
after stating the case as above, delivered the opinion of the court.
The plaintiff in error brought this action against the administrator of the • agent for the Crow Indians, alleging the failure of the agent to account for certain money received by him as such officer. [770] The complaint set forth the total sums received by the agent, and the total disbursements by him made, showing a balance of $1,010.50, which it was alleged was unaccounted for. With the complaint was filed as a bill of particulars the account of the agent as settled by the Auditor of the Treasury Department and the certified transcripts from the Commissioner of Indian Affairs. This account showed that, on the expiration of the agent’s term of office, a balance was found due him of $157.50, and that a supplemental account was thereafter stated charging him with $1,168, alleged to have been received by him for the services of certain Crow Indians in hauling hay for one Browne from Dana’s Ranch to Fort Custer, in the fall of the year 1891, against which sum the agent was credited with the balance due him, leaving, according to the account, $1,010.50 which had not been accounted for. The administrator thus had notice that the balance of $1,010.50 sued for was claimed by the government to arise out of money which the agent had received for the services of the Indians in hauling hay for Browne in the fall of 1891. The administrator then filed his answer, and therein, among other defenses, alleged that the agent had satisfied and discharged the claim arising out of this transaction by the payment thereof. When the interveners appeared and answered they also had notice of the nature of the plaintiff’s claim. In their answer they referred to the specific item on which the balance was claimed in favor of the United States, and alleged that the money so received by the agent for the Indians was not $1,168, as charged in the account, but was the sum of $851.80, which they alleged was the money of Browne, and that the said agent paid the same to the Indians on account of their services in hauling hay for Browne. In support of that defense they produced in evidence the deposition of David G. Browne, who testified that the Indians had earned $851.80 in hauling hay on his account, and that he had paid that amount to the agent, to be by him paid to the Indians on account of their services. They failed, however, to prove that the agent had paid any of the said money, to the Indians, and the court found that he had received the money from Browne as alleged in said answer, but that no part- thereof has been paid to the Indians. Notwithstanding these findings of fact, the court denied a judgment to the plaintiff in error on the ground, as stated in the opinion, as follows:
“The government has no interest in the transaction, except incidentally from its obligation to compel its agent to deal honestly with the Indians. This interest, obligation, and right of the government is quite different from the right of a creditor to whom money is due. It is my opinion that the auditor committed an error in the adjustment of Wyman’s accounts, as shown by his statement of differences in charging this item of $1,168. Therefore the evidence offered by the government fails to prove the particular breach of the bond alleged in the complaint. If Wyman embezzled money which he should have paid to the Indians or returned to Browne, such conduct constituted a breach of the conditions of this bond, and the government is entitled to prosecute an action upon the bond to recover damages for the benefit of the injured individuals; but the rules of pleading cannot be disregarded, and a recovery cannot be permitted when the allegations of the complaint are not sustained by the evidence, although the obligor may be in fact guilty of a breach not assigned in the complaint. If this complaint [771] were amended so as to charge Wyman with misappropriating money earned by the Indians, still the government would not be in any better position, because the evidence introduced on the part of the government is, in my opinion, incompetent to prove such fact. * * * There is no evidence tending to prove that he received money from Browne, except a deposition of Browne taken at the instance of the defendant; büt, if a new issue were to be tried, this evidence would not be available for the government, because it would be unfair to use the defendant’s evidence, procured to disprove a different charge, to supply what is lacking to make a complete prima facie ease for the plaintiff.”
We think that in taking this view of the case the court failed to give due regard to the state of the pleadings. The answers of the administrator and the interveners not only do not put in issue the averment of the complaint, as aided by the bill of particulars, that the agent received from Browne money to be paid to the Indians, but they expressly admit the receipt of such money by the agent, and proceed to plead affirmatively that the money was properly paid out by him. It cannot be disputed, and the Circuit Court so held, that the United States, as representing the Indians under its charge on the agency, had the right to bring an action to recover money which the agent received for the services rendered the Indians. United States v. Kagama, 118 U. S. 375, 6 Sup. Ct. 1109, 30 L. Ed. 228; United States v. Boyd, 27 C. C. A. 592, 83 Fed. 547; United States v. Flournoy Live Stock, etc., Co. (C. C.) 69 Fed. 886. It is immaterial that in the complaint it is alleged that the money .was money of the United States. If it be conceded that the United States could sue upon the bond to recover the money, it must follow that it could recover it upon the facts found in the present action, when we consider that before making their defense the defendants in error were by the pleadings properly advised of the precise nature of the demand upon which the action was brought. The bill of particulars which was filed in aid of the original complaint specified the nature of the demand, and directed attention to the item out of which it arose, and gave notice that the money sued for was that which the agent had received from Browne for and on account of the services rendered by the Indians. The defendants in error, in making answer both to the original complaint and to the amended complaint, framed their defense with express reference to that item of the account. To make out the case of the plaintiff in error, it was not necessary to refer to the deposition of Browne. That deposition proves no more than the answers had already admitted to be true. The defendants in error went to trial admitting that the Indians had earned $851.80 by hauling hay, and that Browne had given the agent that sum with which to pay them. Their defense, as they pleaded it, was that the agent had paid the Indians. The court found that this was not true, and that no part of the money was so paid out by the agent. There was no objection taken to any of the testimony on the ground that the action was brought to recover money as the money of the United States, when in fact it was money due the United States in a fiduciary capacity. The defendants in error were in no way misled by the averments of either the original complaint or the amended complaint. They failed to sustain the specific de[772] fense which they pleaded, and on the facts as found by the court we think the plaintiff in error was entitled to judgment for the sum of $851.80, less the balance of $157.50, which was due the agent on the settlement of his accounts with the United States on July 14, 1899, or $694.30, with legal interest thereon from the date of such settlement.
We find no error in the ruling of the Circuit Court that the claim of the plaintiff in error was not barred by the state statute of limitations. United States v. Thompson, 98 U. S. 486, 25 L. Ed. 194; United States v. Belknap (C. C.) 73 Fed. 19; United States v. Hoar, 2 Mason, 311, Fed. Cas. No. 15,373. Nor do we find ground for holding, as urged by the defendants in error, that the rejection of the claim by the judge of the superior court for Pierce county was res judicata. The rejection was not a judgment. There was no suit upon the claim in that court. The presentation of the claim to that court was not only ex parte, but it would seem to have been unauthorized by statute. The statutes of Washington (Ballinger’s Ann. Codes & St. §§ 6226, 6230) provide that a claim against the estate of a decedent shall be verified by affidavit and presented to the executor or administrator, and that if the executor or administrator allow the claim it shall then be presented to the judge of the superior court for his allowance or rejection. There is no provision that a claim rejected by the executor or administrator may be presented to the judge of the superior court. But, however this may be, it is clear that section 6233 contemplates that after rejection of the claim by the superior court an action may be brought thereon. It provides: “When a claim is rejected by either the executor, administrator, or the court, the holder must bring suit in the proper court against the executor or 'administrator within three months after its rejection; otherwise the claim shall be forever barred.”
The judgment is reversed, and the cause remanded, with instructions to enter judgment for the plaintiff in error in' accordance with the foregoing views.