This is an appeal from a judgment sustaining a demurrer to a declaration and dismissing the plaintiff's suit.
The declaration is in two counts. The first count alleges, in substance, that the appellee Clark, at the time the matters here complained of occurred, was the sheriff and tax collector of Sunflower county, and that the appellee, the United States Fidelity Guaranty Company, was the surety on his official bond; that the appellant owned property, situated in Sunflower county, on which taxes to the amount of nine hundred fifty dollars were *Page 228 due; that on the 12th day of December, 1931, the appellee had on deposit with the Bank of Indianola, located in the city of Indianola and within one business block of the appellee's (Clark's) office, a sum of money exceeding nine hundred fifty dollars, and continued to so have until the bank failed and went into liquidation on December 16th thereafter; that, pursuant to "the custom and usual way of paying taxes," the appellant delivered to the appellee Clark on the 12th day of December, 1931, its check for the amount of taxes due on its property, and received from him a tax receipt therefor, but that Clark failed to present the check for payment until after the bank had failed, resulting in the appellant having to again pay the taxes due on this property, because of which the appellant was damaged in the sum of nine hundred fifty dollars, for which it prayed for a judgment.
The second count alleges, in addition to the matters set forth in the first count, in substance, that the bank of Indianola was a legally designated and qualified depository for county funds; that it was Clark's duty to immediately deposit the check given to him by the appellant for the amount of its taxes in this county depository; and that, if he had so deposited it, the check would have been paid; but that he negligently failed to do so, resulting in the loss to the appellant of the amount of the check for which it prayed for a judgment.
Clark and the surety company joined in a single demurrer to the declaration. This demurrer was sustained, and, on the appellant's declining to amend its declaration, a final judgment was rendered denying it a recovery.
Under section 2842, Code 1930, a check must be presented for payment within a reasonable time after its issuance, in default of which the drawee must bear the loss occasioned thereby. "In the absence of special circumstances excusing delay (and there is no pretense of any excuse here), the reasonable time for presentment of a check on a bank where the person receiving the same *Page 229 and the bank on which it is drawn are in the same business community is not later than the next business day after it is received." Moritz v. Nicholson, 141 Miss. 531, 106 So. 762, 763.
The appellee admits that such is the general rule, but asserts that it has no application here, for the reason that taxes can be paid only in money, and therefore he was under no obligation to receive, or, after receiving it, to collect, the check, in support of which he relies on Moritz v. Nicholson, supra. That case did not and could not have so held; there being no such question there presented for decision. In that case the plaintiff had given the tax collector a check on a bank for the amount of his taxes, which check the tax collector negligently failed to present for payment before the bank on which it was drawn failed; and, the taxes which the plaintiff attempted to pay by means of this check not being thereafter paid, the tax collector sold the property for nonpayment of taxes. The plaintiff then sued the tax collector for the statutory penalty for selling property for taxes on which the taxes had been paid. The court held that this penalty could not be recovered, for the reason that the acceptance of the check by the tax collector was not a payment of the taxes, and therefore it became the duty of the tax collector to sell the land therefor. The liability vel non of the tax collector for the actual damages sustained by the drawer of the check, because of the delay in presenting it for payment, was not involved.
The appellee further asserts that the check was accepted by him as an accommodation to the appellant, and we will assume, but merely for the purpose of the argument, that the declaration so disclosed, and therefore he was merely a gratuitous agent in the matter, nevertheless the same result must follow. Such an agent is not held to the same degree of care and diligence that an agent for hire is, but he is liable to his principal if *Page 230 he negligently and needlessly exposes his principal to loss. 2 C.J. 722; Moore v. Gholson, 34 Miss. 372; Lampley v. Scott,24 Miss. 528. The declaration presents a prima-facie case of liability which the appellee must meet, if at all, by disclosing facts that relieve him of the charge of negligence.
The second count of the declaration presents no cause of action. Had the appellant's taxes been paid in money, or had the check given the appellee therefor been collected by him, his failure to deposit the money or the check in the county depository, if such was his duty, as to which we express no opinion, was no concern of the appellant, that being a question between the appellee and the county or other public body to whom he owed the duty of depositing public money in the county depository.
The demurrer, being to the whole declaration, and not to its separate counts, should have been overruled.
Reversed and remanded.
ON SUGGESTION OF ERROR. On suggestion of error. Suggestion of error overruled. For former opinion, see 114 So. 477.