| Mo. | Apr 15, 1891
This action is based on twenty-two interest coupons for the sum of $35 each, due on the first day of May, 1882. Payment coupled with estoppel is the real defense interposed.
On the first day of November, 1871, the defendant county issued two hundred bonds of the denomination of $1,000 each, in payment of a subscription to the stock of a railroad company. Twenty-two of these bonds were claimed by different persons, the plaintiff having the largest interest in them. The controversy between the parties resulted in a suit in the state court, and the appointment of Brownlee as receiver, and the twenty-two bonds were turned over to him. That suit seems to have been transferred to the circuit court of the United States, and the bonds were in the hands of the clerk thereof for some time. The rights of the parties having been adjusted by that courtjthe bonds and all the coupons were again turned over to Brownlee as receiver on the sixth of April, 1882.
On May 17, 1882, there were eleven past due coupons upon each of the twenty-two bonds. On that day Brownlee as such receiver and Mr. Hatfield, as the financial agent of the county, made a settlement whereby the county issued new bonds for the twenty-two then in the hands of Brownlee. As a part of the same settlement the county agreed to pay, at a subsequent date, a specified amount for matured coupons. The evidence on both sides shows that these negotiations were continued over two days ; that Brownlee and Hatfield were unable to agree; that the plaintiff had the largest interest in the bonds and coupons, and he and the presiding county judge took the matter in hand and concluded
The evidence of the county clerk is to the effect that, after the payment just mentioned, he gave the agreement to plaintiff. The plaintiff testified that he did not get the agreement from the clerk, and never-had it. It was not produced on the trial by either side. The evidence of the county officers who participated in the settlement and who saw the agreement is direct and positive to the effect that it included all the past due coupons. The plaintiff testified that he received the twenty-two coupons which matured the first of May, 1882, from Brownlee a few days before they matured that he took them as so much cash ; that he had them in his possession when the agreement was made with the county,-and that they were not included in that agreement. His evidence is supported by that of Brownlee. He admits that he was present when that agreement was made, and was instrumental in bringing it about. He says he did not make it known to any of the county officers that he owned the coupons sued upon. He made no claims upon the county for payment of the coupons in suit until some months after the final payment made to Brownlee, and he was present when that payment was made.
There can be no doubt but the county officials made the agreement of date May 17, 1882, supposing and believing that Brownlee had and held all of the coupons. If the settlement included all the matured coupons and the plaintiff was present and assisted in negotiating that settlement and shared in the proceeds arising from
The defendants’ second and fifth instructions which set forth this theory of defense should have been given, and the court erred in refusing to give them. The instructions given do not cover this defense. It is probable that the court refused to instruct on this defense on the ground that it was not well pleaded. The answer sets out the fact that Brownlee held the bonds and coupons in the capacity of a receiver, the agreement made with Hatfield, financial agent of the county, the payment of the money thereby agreed to be paid to Brownlee, and alleges, that the plaintiff was “present, aided and assisted in making the terms of said contract of settlement in person, and assented thereto,” and that he received his proper share of the money paid by the treasurer to Brownlee under and in full compliance with the settlement. The answer sets out the facts as disclosed by the evidence produced by the county with even unnecessary detail, and discloses a good defense. The court erred in holding that it did not make out a defense of estoppel.
The judgment, which was for the plaintiff, is reversed and the cause remanded for new trial.