126 Ky. 200 | Ky. Ct. App. | 1907
Opinion op the Court by
Affirming.
.This- action was instituted in the Franklin circuit court by the Commonwealth of Kentucky to recover of L. C. Norman, ex-Auditor of the State, and M. S. Barker, his agent, a large sum of money of which it was . charged they had wrongfully and fraudulently deprived the State. The petition charged, that the Auditor and his agent had entered into a fraudulent conspiracy by which the former paid over to the latter large sums of money as fees for certain illegal services pretended to have been rendered with reference to the collection of back license taxes. The defendant answered, denying all the allegations of the petition; then pleaded affirmatively in the second paragraph that the agent had rendered the services and collected the back license taxes for the State under the advice of the Attorney General, who, when the question was submitted to him, advised that it was the duty of the agent to perform the services, and that he was entitled to the fees allowed by the law for
When the case returned to the trial court the defend
The evidence shows that Ml S. Barker was appointed auditor’s agent by Gen. Fayette Hewitt long before the origin of this litigation; that Hewitt, as the general fiscal official of the State,- had ascertained that the revenue of the Commonwealth from license fees had very largely depreciated, and especially was
We cannot concur in this conclusion. The record shows without a shadow of contradiction that appellee in the utmost good faith undertook, in obedience to the commands of his superior, who had a right to direct him, to perform., and did perform for a long-period of years, very valuable services to the Commonwealth; that from time to time, as he covered money into the treasury as the result of his labor, the Auditor drew his official warrant on the Treasurer in favor of the agent for the fees which they believed the law authorized to be paid. These warrants were paid by the Treasurer in due course; that a very large part of the money so paid to him the agent paid over to those whom he had employed to assist him in doing the work of which the State received the benefit. This work, as said before, was performed over a long series of years. It was done at the instance and under the direction of two Audit
Assuming, then, that the appellee for a considerable number of years gave his whole time in good faith to the performance of certain duties imposed upon him by his superiors in office, and which was highly advantageous to the State, and which cost him money in a large sum, can the State, after receiving the benefit of the agent’s work and his outlay, and after paying over to him a fair and just remuneration, now recover from him the sum so paid, under the theory that it was paid under a mistake of law, without accounting to him in any wise for his money expenditure or the loss of his time? Green-leaf in his work on Evidence volume 2, section 123, thus states the rule: “Nor can money paid under a mistake of facts be reclaimed where the plaintiff has derived a substantial benefit from the payment; nor, where the defendant received it in good faith in satisfaction of an equitable claim; nor, where it was due in honor and conscience.”. Certainly it will not be contended that the appellee was not in honor and
The very question we have here arose in the case of Commonwealth v. Lyon, 72 S. W. 323, 24 Ky. Law Rep. 1747, wMch involved these facts: H. B. Lyon, J. M. Thomas, and W. Carpenter were appointed in April, 1884, as commissioners to superintend the buildmg of the branch penitentiary at Eddyville for the Commonwealth. The contract to do the work and supply the material was let to Mason & Co. and O’Conner & Brewster. After the work had gotten under way the State failed, for reasons not given, to make sufficient provisions of funds for carrying on the work, whereupon the contractors abandoned it. Thereupon the commissioners, without any contract with the State, and without any specific warrant of law therefor, but under the advice and at the request o-f the sinking fund commissioners, who had general supervision of the matter, undertook to complete the building with such funds as the State afterwards furnished, and did finally complete the structure. Now, under the law these commissioners were entitled to
When the State sued appellee, he became, at once entitled to maintain any counterclaim he had against it, although he could not have set up the counterclaim as an original cause of action, for the reason that a citizen cannot sue the State without its consent. Commonwealth v. O. & M. R. R. Co., 81 Ky. 572, 5 Ky. Law Rep. 650; Commonwealth v. Todd, 9 Bush, 708. The fact that appellee did not set up his counterclaim before the second trial does not conclude his right so to do. A counterclaim is really an independent action, and every allegation necessary to constitute an independent action is necessary to constitute a good counterclaim; and, although a party may set up a cause of action as a counterclaim to a suit brought against him, his failure so to do does not conclude his right to afterwards bring his suit. The appellee might have waited until after the judgment against him and execution issued, and then set up his counterclaim against its enforcement. Emerson v. Herriford, 8 Bush, 229; Chinn v. Mitchell, 2 Metc.
For the foregoing reasons, the judgment is affirmed.