Cavanee v. City of Milan, 99 Mo. App. 672

Cavanee v. City of Milan

99 Mo. App. 672 | Mo. Ct. App. | 1903

BROADDUS, J.

This is a suit by plaintiff for a part of his salary, alleged as due him as marshal of the defendant city. It was admitted that he was the defendant’s marshal for the time for which he claims *674compensation, and it is also admitted that he did not perform the duties of the office during such time; but it was shown that he was unable to so perform sucn duties by reason of sickness. Plaintiff claimed that he was entitled to $25 a month under the ordinances of the city, while defendant contended that he was only entitled to $25 a year. On the trial what purported to be a copy of an ordinance fixing the salary of the city marshal was in evidence. This copy was printed in a pamphlet which was claimed as containing the ordinances of the city. In a section of one of said alleged ordinances which related to the city marshal, it appeared that his salary was fixed at $25 a year, but the word year was crossed with red ink, and above was written the word “month.” The original ordinance was mislaid or lost. The plaintiff offered to show by the attorney who had written the ordinance that it was written by himself and passed by the city council, and that it fixed the marshal’s salary at $25 per month. The offer was refused by the court.'

The court sitting as a jury found for defendant. Plaintiff appealed.

As the evidence did not show that said pamphlet purporting to contain the ordinance regulating the salary of the city marshal was published by the authority of the city council, the plaintiff .was not precluded from showing the contents of such ordinance as it passed the city council, the same having been lost or destroyed. Wells v. Pressy, 105 Mo. 164.

And plaintiff was entitled to his salary for the time during which he was sick and unable to perform the duties of the office. Bates v. St. Louis, 153 Mo. 18; State v. Walbridge, idem, 194.

Respondent has filed what is claimed to be an authentic copy of the original ordinance, but as appellant has not agreed that it is such, we can not consider it.

Cause reversed and remanded.

All concur.