| Ill. | Dec 15, 1849
In March, 1848, an agreement was entered into between Hos-ford and the county commissioners of Pike county, by the terms of which, the former was to'erect a bridge on or before the first of January thereafter, and the latter were to pay him §779, when the bridge should be finished and accepted. The sum of $ 220 was paid to Hosford on the 7th of November, 1848; and the bridge was completed by him, and accepted by two of the commissioners, on the 9th of the same month.
At the December term, 1848, of the Commissioners’ Court, an order was entered of record, directing the clerk to draw orders on the county treasurer,, in favor of Hosford, for the payment of $ 559; and the orders were issued by the clerk and tendered to Hosford, who refused to receive them, because they did not in terms bear interest.
In March, 1849, Hosford brought an action against the county of Pike, on the original contract; and the Circuit Court, on the foregoing state of facts, gave judgment in his favor for $ 559, and interest, from the day of the completion of the bridge.
That decision is assigned for error. The funds of a county are required to be kept in the county treasury, and are only to be paid out on the orders of the Commissioners’ Court, or ee by virtue of a law specifically directing such payment to be made.” R. S., ch. 28, sec. 6. The commissioners have no authority to take funds from the treasury, and pay the same out directly to the creditors of the county. They may audit claims against the county, and direct warrants to be drawn on the treasurer for their payment. The creditor must procure an order from the Court, and present it to the treasurer for payment. This is the only mode by which he is to receive payment of his debt. Even when he recovers judgment against the county, he can only obtain satisfaction, through the medium of an order on the treasurer. He is not entitled to execution on the judgment. R. S., ch. 27, sec. 20.
In no other way could Hosford obtain payment of the amount due him from the county. Before this suit was commenced, and at the first term of the Commissioners’ Court held after the bridge was completed, warrants were issued and tendered him, for the balance due on the contract. He declined to receive them, because they did not bear interest on their face. The only point in the whole case is, whether the county is bound to pay interest on the balance after it became due. If it is liable to pay interest, the amount tendered was insufficient; if otherwise, the tender was sufficient, and constituted a goo# bar to an action on the contract. This Court, in the case of Madison County vs. Bartlett, 1 Scammon, 67, decided that counties are not bound to pay interest on county orders, in the absence of an express agreement to pay it. That decision seems to be conclusive of this case. If an order drawn on the settlement of a demand against a county, does not bear interest unless it is so expressed in the order, it is very clear that interest will not run on an unadjusted cause of action, on which interest was not originally agreed to be paid. There is no provision of law, requiring county orders to be drawn payable with interest; and the contract between these parties did not provide that interest should be paid, after the money became due. The parties contracted with reference to the laws governing contracts made with counties, and prescribing the mode of obtaining payment. If they had designed to take this contract out of the operation of the general rule, they would have expressly stipulated for the payment of interest.
The plaintiff has no just cause of complaint against the county. The commissioners, at the earliest moment, complied with every legal obligation, for the performance of the contract, on the part of the county. They promptly tendered him all that he had any legal right to demand—all that he could obtain by a suit against the county. He ought therefore to have accepted the warrants in liquidation of his cause of action.
There is a clear distinction between the case of Madison County vs. Bartlett, and that of La Salle County vs. Simmons, 5 Gilman, 513. The former case, like the present, arose out of a contract made with a county in the course of its legitimate business transactions ; and it was held, that the county was not to be charged with interest, in the absence of an agreement to pay it. . In the latter case, the county had, without authority of law, or color of right, obtained the possession of money belonging to Simmons, and detaining it against equity and good conscience, it was required to make compensation for the injury inflicted on Simmons, by the payment of interest, in the way of damages. The conclusion to be drawn from these decisions is, that counties do not pay interest on their contracts, except in pursuance of an express agreement to do so; but that in actions originating in torts, they are liable to the same extent as private persons. *'
The judgment of the Circuit Court is reversed, with costs.
Judgment reversed.