51 P. 454 | Idaho | 1897
The complaint in this case contains two counts. In the first count, the plaintiff, after making the necessary preliminary allegations, alleges the following facts: That the board of county commissioners of Bannock county did, July 14, 1893, by order then entered upon the records of said board, determine that it was essential to purchase real estate upon which to erect a courthouse and jail, and appointed three disinterested citizens of said county to appraise certain blocks in the city of Pocatello; that said appraisers accepted said appointment, took and filed their oath as such appraisers, and appraised said blocks, one of which was block 268 of said city, owned by the plaintiff, which said appraisers appraised at $4,500; that said appraisers reported their said acts, which report was received and spread upon the minutes of said board, and the said appraisers were discharged; that the plaintiff then offered to sell said, block 268 to said county for the sum of $4,000, which offer was, by said board of commissioners, by order made and entered on its minutes, accepted; that the
The second ground of demurrer is not well taken. The county is the real party in interest so far as the defense to this action is concerned. The treasurer is, to the extent prescribed in section 1759 of the Revised Statutes, under the supervision of the board of county commissioners; and, if the county has any defense to the action, it is proper to give it the opportunity to make it.
As to the third ground of demurrer, it is not good, for the reason that the complaint only states one cause of action. If the plaintiff recovers in this case, he must do so upon his warrant. The county is liable, if at all, upon the contract made: pursuant to section 1759 of the Revised Statutes, which merged, into the warrant in question, and not upon any implied promise. The second count of the complaint is immaterial, and, while it is not reached by the demurrer, might properly be stricken out on motion. The decision in Bannock Co. v. C. Bunting & Co., 4 Idaho, 156, 37 Pac. 277, is not conclusive of this case. The plaintiff in this ease was not a party to that suit.. What was said in the decision in that ease with relation to the warrant in question here was upon the assumption that the revenues of the county were insufficient to pay the ordinary and necessary expenses for the year of 1893. That question of fact can properly be raised by answer in this case. The judg