Carroll County v. Cheatham

48 Mo. 385 | Mo. | 1871

Currier, Judge,

delivered the opinion of the court.

The plaintiff sues on three $100 notes given to the county upon the loan of school moneys. The execution of the notes is admitted, and the defendants plead payment in bar of the action. At the trial evidence was given tending to show that the same notes were previously sued upon in an attachment against Cheat-ham, who was the principal in the notes. There was also evidence tending to show that the County Court of Carroll county assented to the notes being placed in the hands of Troxell, the county attorney, for the purposes of such suit, but upon the condition that one of Cheatham’s sureties, who desired the suit to be instituted, should pay all costs and expenses attending it. There was also evidence tending to show that Cheatham, subsequently to the institution of the attachment suit, paid the full amount due upon the notes to Troxell, the county attorney, and the attorney of record in the suit. Under the evidence the court refused to instruct the jury that Troxell had no authority to receive the money, or that the payment to him was unwarranted, unless the County Court of Carroll county especially authorized the institution of the attachment suit. It did instruct the jury, however, and at the instance of the plaintiff, that the supposed payment was wholly unwarranted and invalid unless the jury should find from the evidence that Troxell, at the time said payment is claimed to have been made, was the lawfully authorized agent and attorney of the plaintiff to bring the attachment suit and collect the money due on said bonds (notes) ; and further, that the verdict must be for the plaintiff unless the jury found the further fact that the defendants, or some one in their behalf, “ actually and in good faith paid in money the amount of said bonds and the interest due thereon.” I think the instructions given fairly presented the plaintiff’s case on the issue of payment, and that those refused were properly refused.

There is nothing in the statute to which the plaintiff’s counsel refers (E. C. 1855, ch. 118, art. ix) that has any bearing on the point here involved. The county, like any other party, was warranted in appearing and acting -through its attorney of record, and the attorney was warranted in receiving'the money sued for as in other cases. • I have examined all the instructions asked by the plaintiff and refused by the court, as also those given at the instance of the defendants, to which the plaintiff objects. I find nothing in them to warrant a disturbance of the judgment, and see no sufficient occasion for reviewing them in detail. As-already remarked, the plaintiff has no substantial ground of complaint because of the action of the court in placing before the jury the law in relation to Troxell’s agency and upon the issue of payment.

The judgment will be affirmed.

The other judges concur.