Wolff v. Stoddard

25 Wis. 503

Opinion

PAINE, J.

This was an action by the connty treasurer against the town treasurer, on the bond given by the latter to secure the payment to the former of the state and county taxes which the town treasurer might collect. The judgment would have to be reversed under the ruling of this court in Winchester v. Tozer, 24 Wis. 312, which was adhered to after an elaborate argument on a motion for rehearing.

But a majority of the court think, also, that the complaint was fatally defective in not sufficiently showing any breach of the condition of the bond. The allegation is merely general, that the defendant had not “truly accounted for and paid over, according to law, all the state and county taxes which came to his hands as town treasurer,” etc. There is no allegation that any state or county taxes ever came to his hands at all. The question is similar to that in the case of the Supervisors of the Town of Franklin v. Kirby and others, ante, 498. And for the reasons given in the opinion in that case, we think the complaint on a bond should state facts which, .if true, show that there has necessarily been a breach of the condition.

By the Qourt. — The judgment is reversed, and the cause remanded.

Dixon, C. J., dissents as to the second proposition.