Appeal, No. 36, March T., 1950, from judgment of Court of Common Pleas of Westmoreland County, Nov. T., 1947, No. 100, in case of Columbia Casualty Company v. County of Westmoreland. Decree reversed.
Fred B. Trescher, with him James J. Burns, Jr. and Kunkle & Trescher, for appellant.
Jason Richardson, Special Counsel, with him Vincent E. Williams, County Solicitor, for appellee.
Before Drew, C.j., Stern, Stearne and Jones, JJ.
OPINION BY MR. JUSTICE HORACE STERN
In this action for money had and received plaintiff seeks to recover on either of two theories; the court below rejected both, -- one of them, in our opinion, mistakenly.
Plaintiff's complaint alleges that C.C. Stewart, who was the tax collector for the County of Westmoreland, was short in his accounts with the county treasurer in the amount of approximately $9,000. Stewart died, and shortly thereafter his daughter, Anna Kate Stewart, having been appointed tax collector for the School District of Derry Township in that county, executed two checks for the purpose of meeting that shortage, -- one in the amount of $5,700 payable to the order of "C.C. Stewart Est." and endorsed in blank by the administrator of that estate, and the other in the amount of $3,300 payable to the order of "M.L. McWherter, Treas.", he being the treasurer of Westmoreland County. The $5,700 check was signed "Anna Kate Stewart, Coll."; the $3,300 check was signed "Anna Kate Stewart, Tax Coll."; both checks were drawn on the account which Anna Kate Stewart maintained as tax collector in the Fidelity Deposit Bank of Derry and were duly delivered
to the county treasurer. The complaint avers that she thus "wilfully misapplied" the school district's moneys and that the county wrongfully converted them to its own use by accepting them when, through its officers, it knew, or should have known, that the shortage of C.C. Stewart was being paid from funds belonging, not to Anna Kate Stewart individually nor to the estate of C.C. Stewart, but to the School District of Derry Township. Plaintiff, Columbia Casualty Company, was the surety on Anna Kate Stewart's bond as tax collector for the school district and as such was compelled to pay to the school district the sum of $9,000 with interest which it now seeks to recover in this action, the school district having assigned to it its own right of recovery. The complaint further avers, as an alternative basis for plaintiff's claim, that the $9,000 was "erroneously or inadvertently" paid by Anna Kate Stewart into the treasury of Westmoreland County under an assumption that such taxes were due and owing from the School District of Derry Township when in fact such taxes were not so due and owing.
Defendant filed preliminary objections in the nature of a demurrer to the complaint, and entered judgment in favor of defendant. It pointed out that plaintiff's allegation that the $9,000 was paid by Anna Kate Stewart erroneously or inadvertently under an assumption that that amount was due and owing from the school district for taxes was wholly inconsistent with plaintiff's other allegation that the money so paid by Anna Kate Stewart was a wilful misapplication of funds of the school district in order to pay the shortage in her father's account with the county treasurer. The Act of May 21, 1943, P.L. 349, allows a recovery of any taxes erroneously or inadvertently paid into the treasury of any political subdivision under an assumption that such taxes were due and owing when in fact they were not due and owing to
the political subdivision. It is clear, however, from the other averments in the complaint that the payment was not made by Anna Kate Stewart erroneously or inadvertently under any mistaken assumption as to the facts, and that the checks were not intended or considered by her to constitute payments of taxes due by the school district to the county, but were solely for the purpose of paying her father's indebtedness to the county. And even if the payment were to be treated as one of taxes such taxes would have been ...