106 Mo. 659 | Mo. | 1891
This is an action on six money bonds of the county of LaFayette, executed under the seal and signed by the president of the county court of said county and attested by its clerk, five of them dated January 3, 1867, each for the sum of $500 and each payable twelve months after date, with interest from date at the rate of ten per cent, per annum (compound), to
The court found for the plaintiff on each count of the petition, and rendered judgment in his favor for the amount of each and all of said bonds, with interest according to their tenor, less the amount of credits for interest paid before suit. From which judgment the defendant appeals. The errors insisted upon for reversal will be noticed in their order.
I. In the circuit court of Jackson county the defendant moved that the cause be remanded to the circuit court of Ray county, for the reason that these two courts not being in the same judicial circuit, the latter had no power to award a change of venue to the former. When the change of venue in this case was awarded, the statute provided that “a change of venue may be awarded in any civil suit to any court of record * * * .” R. S. 1879, sec. 3729. The only limitation being that it must be sent to the court in “ some county where the cause or causes complained of do not exist, as convenient as may be to the opposite party.” R. S.,
II. By answering the petition, defendant waived all objections to its sufficiency except one, i. e., “ that it failed to state a cause of action,” and this objection only could be urged as ground for refusing to permit any evidence to be introduced in its support. The several bonds sued on were filed with the petition, they are each declared on in apt terms in separate counts as negotiable instruments, duly issued by the county court of said county under its seal; the first “five for the purpose of erecting a good and sufficient jail in the city of Lexington, then the established seat of justice of said county,” and the sixth “for the purpose of causing the Wellington and Lexington road, a public road in said county, to be improved by grading, throwing up of embankments and building culverts and bridges so as to make said road secure, permanent and good.” For these purposes the law authorized the issue of county bonds. G. S. 1865, ch. 36, p. 221, sec. 1; Sess. Acts, 1868, p. 150, secs. 1, 2, 7; p. 42, secs. 1, 2.
In pleading, a distinction is necessarily made in declaring upon negotiable securities issued by a county of this state and individuals; a petition may be good against an individual that would not be good against a county. This grows out of the fact that the county has no general or inherent power to issue bonds; hence, in declaring upon such bonds, it becomes necessary to allege that they were issued by authority of some special act, or for some purpose for which the counties have the right and power to issue bonds. Donaldson v. Butler Co., 98 Mo. 163; Dillon Mun. Corp. [4 Ed.] sec. 509. The pleader in this case recognized the force of
If it be held, however, that in order to recover the plaintiff must allege, and ini the first instance show, that the power had not been exhausted, the allegation that the bonds were “duly” issued would have been sufficient to put the plaintiff on such proof. R. S. 1879, .sec. 3551. So the petition stated a cause of action and made a prima facie case on these jail bonds against the defendant in either view, so far as this objection goes.
It is further urged that the petition is insufficient, in that it is not averred that Hackett, the payee, was the contractor for the building of the jail, nor that he
III. There is nothing in the objection to the first two counts in the petition that plaintiff could not sue on the two bonds therein declared upon, for the reason that they were assigned to him as guardian of Mary Catron. As the trustee of an express trust authorized by statute to sue for the dues of his ward, the action was properly brought by him on these bonds in his own name. R. S. 1879, secs. 3463, 2579. Besides, the objection was waived by answering. The petition stated a good cause of action on each of the bonds sued on.
IV. The- answer sets up as a defense, that the five jail bonds sued on were part of a series aggregating more than $10,000, issued by the county court for the purpose stated in the petition. The evidence tends to show that there were issued under the several orders of the county
Y. There can be no question that the county court had the power to issue the jail bonds in suit in such form and for such time as they might deem expedient.
The record entry of the order for their issue of the date of January 5, 1867, did not fix the form and time •of such bonds, but simply “ ordered that nine county bonds be issued to Thos. M. Hackett for the sum of $500 each” and “that said Hackett be charged with th same on account of building jail.” The bonds were accordingly so issued, and charged at their face value, to Hackett; the form and time were fixed in the bonds, and, as an incident .of the time, the rate of interest; the form that of a negotiable instrument under the seal of the court signed by the president and attested by its •clerk; the time, twelve months after date; the rate of interest, ten per cent. In the performance of these acts the county court acted not as a judicial tribunal, but as the agent of the county whose acts are to be tested by the principles governing such agencies, and not by those governing the actions of judicial tribunals. There is no incongruity whatever between the order of court entered of record, and the bonds in question issued in pursuance thereof. The bonds are within the terms of the order, and consistent with it; together they constitute the action of the agent in behalf of its principal' in the matter of these bonds. That action was certified to the world on the bonds, under the seal of the court, attached by its proper officers, as evidenced by their signatures duly proven on the trial, and was within the ;Scope of the authority vested by law in the county •court as the agent of defendant. It was as well within its
VI. What has been said applies to many of the objections urged against the validity of the sixth or road bond; in addition it will be necessary only to notice those specially urged against this bond. ' The statute by virtue of which this bond was issued authorized the county court in their respective counties “to cause all public roads therein, or any of them or any part thereof, to be improved by macadamizing, grading, throwing up of embankments and building culverts and bridges so as to secure permanent and good, roads.” Sess. Acts, 1868, p. 150, sec. 2. And for such purposes “to borrow money on the credit of the county, and issue the bonds of the county with coupons attached ; but said bonds shall not be of a denomination of less than $100 nor more than $1,000, and shall not run
VII. It is further urged against this bond, that it is not a coupon bond, and the court made no order making it transferable. By issuing the bond in the form of a negotiable instrument, the court made it transferable, as such securities are transferred. Coupons are a convenient means for the adjustment and payment of interest at stated periods on negotiable instruments, that have a long time to run. They could have no place •on a bond for a year. Their use is a mere matter of form and convenience. The position is not tenable that, because the legislature authorized the court to use this •convenient form, when desirable, that they made its use
VIII. We do not deem it necessary to review the rulings of the court on the admission of evidence; we have examined all of the objections thereto, and find those rulings, in the main, correct, and no error committed in this respect that could affect the result; nor is it necessary to set out and examine the multitudinous instructions asked for, but refused by the court, or review the argument of counsel upon the question of ratification and estoppel based upon the fact that the work for which these bonds were issued was done, was accepted, and settled for by the county court with these bonds as cash, and the interest on them paid according to their tenor and effect annually for years after they came into the hands of the plaintiff. In the view we take of the principles governing this case, the bonds were valid ab initio in the hands of the plaintiff and no ratification was needed to support them. The trial court must have so held, and its judgment is affirmed.