80 Mo. 484 | Mo. | 1883
This was an action for $578, claimed to be due to plaintiff on account of salary as marshal of the city of Moberly.
The plaintiff alleges in his petition that according to an ordinance of the city, approved July 5th, 1875, the salary of the city marshal was fixed at the sum of $75 per month; the he was elected to the office in August, 1877, and was twice re-elected, in April, 1878, and in April, 1879; and that he held the office from August 1st, 1877, till April, 1880. He files an exhibit with his petition, showing that he was paid every month during the whole time of his service, at the rate of $60 per month. This suit is for the difference between $60 per month, which he received, and $75 per month, as established in the ordinance.
The defendant, in its answer, admits the original valid
To this answer the plaintiff filed a replication of general denial.
At the trial of the case, a jury being waived, it appeared in evidence that the resolution reducing the salary before plaintiff became marshal, was passed by the city council. It was contended by plaintiff that this reduction and consequent repeal could be effected only by ordinance, and that the ordinance fixing the salary at $75 a month continued in force during the whole term of Ms service. The balance of the answer relating to the monthly, annual and final settlements, was proved as alleged.
The plaintiff, in his testimony as a witness, admitted it substantially as alleged, and as sole excuse for attempting to go behind them in his suit, says that at the time of making them he supposed the council had passed a valid ordinance reducing the salary to $60 a month, and did not know any better till after the settlements. The court found the issues in favor of defendant, and rendered judgment accordingly, from which the plaintiff has appealed.
The judgment will have to be affirmed for two reasons, either one of which is sufficient.
The defendant, in its answer, made plea of a complete
If the issues had been framed so as to admit of the plea of fraud or mistake tending to impeach the settlements, there was no evidence of either. As an officer of the .city government, the plaintiff must be presumed to have knowledge of the ordinances or orders establishing and continuing his salary. If, in truth, he had no such information, he has no one to blame but himself. Certainly no misrepresentation or fraud was practiced on him fey the city. She paid him during his term of service the salary which she regarded as due him in pursuance of the resolution or order of the council, and he received it as such, and this, under the circumstances disclosed in the evidence, should be the end of his claim for salary. The facts pleaded and proved constitute an estoppel.
Judgment affirmed.