International Bank v. Franklin County
65 Mo. 105
Mo.
1877
Check Treatment
Sherwood, C. J.

Aсtion on ten county warrants made payable “ out of any money in the treasury appropriated for county expenditures.” The single issue tendered by the answer was contained in the denial that the warrants “ were due and payable.” Judgment went for plaintiff. The motion in arrest having questioned the sufficiency of the petition necessitates an examination of its allegations ; not to determine whether a demurrer would have been well taken, for we have no • doubt on this score, but in order to determine whether the allegations are of such a nature as will, with the intendments which the law will supply, be sufficient after verdict. The petition in brief states the drawing of the warrants in favor of and their delivery to Bauer, that subsequently for a valuable consideration plaintiff became the holder and owner of the warrants, presented the same to the treasurer for payment, which wаs refused because of no money in the treasury, and that fact duly endorsed on the warrants ; that the same were duly registered by the treasurer, who on the order of the county court, in the year 1871 paid plaintiff' two years’ interest on the warrants; that the warrants *110were clue plaintiff and unpaid, and therefore -judgment was asked.

1. county war-general fund, when?6 sued on

The rule in these cases, at common law, is said to be this : “ "Where a matter is so essentially necessary to be proved that had it not been given in evidence the jury could not have given such a verdict, there the want of stating that matter in express terms in a declaration, provided it contained terms sufficiently general to comprehend it in iair and reasonable intendment, will be cured by a verdict.” Jackson v. Pesked, 1 Maule & Selw, 234. And doubtless the like rule should prevail even under our code practice, were an .appropriate case presented for its apрlication, but certainly not where the evidence is preserved in the bill of exceptions, and that bill shows no evidence tending to supply the defective averment. In such case there is no room for presumptiоns in favor of the verdict, and' both the rule and the reason whereon it is founded must alike cease together. This view obtained in Frost v. Pryor, 7 Mo. 314, and is undoubtedly the correct one. There one of the deeds in the plaintiff’s chain of title, owing to a defective acknowledgement, conveyed no title, and it was held that the record showing the contrary, no notice of the title having been perfected could be under these circumstances prеsumed, and that the ease was unlike “ those in which an appellate court is required to arrest the judgment from an examination of the declaration alone, unaccompanied by a bill of exceptions preserving the evidence.”

2. county warmontof.

In the case at bar the evidence is all preserved, and the only endorsements which the warrants declared on bear do not show any assignment to ‍‌​​​‌​​​‌‌​‌​​​​​​​‌‌‌‌‌​‌‌‌‌​​​‌‌​​‌​​​‌​‌​​​‌​‍the plaintiff. The statute ( § 34 p. 415 1 W. S.) provides : that every assignment of any such warrants shall be in the following form :

Eor value received I assign the within warrant to A. B. this-day of-, 18—. Signed. C. D. *111No blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same.” And the next succeeding section (35) prohibits the treasurer from paying “ any warrant to any other than the person in whose favor the same is drawn, or his executor or administrator, or the person to whom the same has been assigned in the manner above, directed,” under a penalty of being deemed guilty of a misdemeanor and fined therefor from $10 to $500.

3. defective pleading when: statute of jeotfons. blU °f exc'"p

It is obvious that the plaintiff has shown no title to the warrants declared on, and under the ruling in Frost o. Pryor, supra,-we shall not in the face ot the record to the contrary, assume that to have been proven which that record conclusively shows was not done, namely, that the plaintiff’ had title in the warrants. Nor do we regard the statute of jeofails (§§ 19 and 20) as giving any help to the plaintiff’, for we certainly should not feel at liberty to supply the defective averments in the petition, ‍‌​​​‌​​​‌‌​‌​​​​​​​‌‌‌‌‌​‌‌‌‌​​​‌‌​​‌​​​‌​‌​​​‌​‍when the record itself shows that the plaintiff has acquired no title in consequence of no assignment of the warrants in conformity with the prescribed statutory method having been made. The conclusion reached on these points must accomplish a reversal of the judgment, but inаsmuch as a new trial may probably occur, it is thought best to discuss other matters.

It will be observed respecting warrants of the sort under consideration that the statute (1 W. S. § 32 p. 415) provides that “ every such warrant shall be drawn for the whоle amount ascertained to be due to the person entitled to the same.” So that according to express statutory provision each warrant is an ascertainment that the sum therein mentioned is “ due” to the pеrson in whose favor the warrant is drawn. And it will be further observed that the preceding section (31) makes it the duty of the court, before ordering their clerk to issue a warrant, to ascertain the “ sum of money to be due from the cоunty.” *112Ill consequence of these provisions of the statute it follows that each warrant, whether drawn on a general or special fund, for the statute makes no distinction, is both a judicial ascertainment and a written acknowlеdgement of indebtedness by the county. In short, it is’ to all intents and purposes the promissory note of the county. Abundant authorities, if indeed authorities are needed where the expression of the legislative will is so plain, sustain this position. In Perry v. City of Milwaukee (15 Wis. 490), where the action was brought on certain orders made payable out of any money belonging to the school fund, drawn on the city treasurer by the ‍‌​​​‌​​​‌‌​‌​​​​​​​‌‌‌‌‌​‌‌‌‌​​​‌‌​​‌​​​‌​‌​​​‌​‍board of school commissioners, the law authorizing such orders to be thus drawn, and рayment having been by the treasurer refused, it was said :

“ The holder of these orders, it is claimed, stands in precisely the'same relation to the city, that a holder of a check upon a bank, drawn by a party having no funds in the bаnk, does in respect to the bank upon which it is drawn. It appears to us that this is an erroneous view of the subject. * * * The orders drawn by the officers of the school board are as much evidence of the indebtedness аgainst the city as an order drawn by the mayor and clerk would be. * * * It is quite true that, the Law provides that the school fund shall be exclusively applied to the payment of the teachers’ salaries and the other necеssary expenses of the public schools; but suppose the fund is inadequate and insufficient to meet these expenses and discharge the orders of the school board, is there no remedy against the city ? ¥e have no doubt about the liability of the city on these school orders. And it is the duty of the city authorities to raise money to pay them, as much as to discharge any other just indebtedness against it. * * * If the city authorities neglect to exercise this power, or fail to levy and collect a revenue sufficient to meet its indebtedness, this is no reason why it should be-relieved from all liability to those who have *113just claims against it for teaching its public schools. It seems to us there -can be no doubt about the correctness of these principles of law.”

In The Board of Commissioners of Floyd Co. v. Day (19 Ind. 450) it was held that: “ The auditor of the county is authorized by law to audit claims against the county, and to draw his warrant or order upon thе treasurer for their payment. Such order when drawn is in legal effect the promissory -note of the county.” In Clark v. Des Moines (19 Iowa 199) Judge Dillon, speaking for the court, said : “ It is claimed by the city that the warrants issued for road purposes are pаyable out of a ‘particular fund,’ and that the obligation to pay depends upon the existence and the sufficiency of the .special fund. * * * There is nothing in the charter which favors the notion that the liability of the city for road debts is conditioned upon the existence of road funds in the treasury. Eor road debts the city is absolutely and unconditionally liable as for other debts. This liability cannot be controlled or varied by the form in which warrants may be drawn or worded by the municipal officers.” In ' Campbell v. The County of Polk (3 Iowa 467) suit was brought on the county warrants, drawn payable out of any money not otherwise appropriated, and it was claimed on behalf of the county that the creditor in оrder to recovery should allege and show that there was money in the treasury ; but the court said : “ It is as clear to us as any proposition can be that he should not be held to this. He is obliged to have his claim settled by the county judge; the judge cannot pay the money, but is obliged to draw a warrant on the treasurer for it. Now, is there any reason or justice in saying that the creditor must allege and prove funds to be in the treasury, because he took a warrant, or because he took such an one ? Upon a refusal to pay, he might return the warrant and sue on the original consideration, and then he would ‍‌​​​‌​​​‌‌​‌​​​​​​​‌‌‌‌‌​‌‌‌‌​​​‌‌​​‌​​​‌​‌​​​‌​‍be relieved from that responsibility. In the opinion of this court these warrants were payable uncondition*114ally, and if there was no money in the treasury, the county is answerable. All considerations of justice and of good law require this decision.” To the same effect are Lyell v. Supervisors, etc., 6 McL. 446; Savage v. Supervisors, etc., 10 Wis. 49; Paddock v. Symonds, 11 Barb. 117. Thе soundness.of the above doctrine 'cannot, we think, be successfully questioned. Nor can any good reason be shown why a county having, as in the present instance, given her written acknowledgements of indebtedness,- should not occupy precisely the same footing as an individual would under like circumstances.; If this be not so, of what avail is it to obtain a warrant at all ? None whatever. In Mansfield v. Fuller (50 Mo. 338), where the pay claimed for certain servicеs would come “ from the general .revenue of the county,” it was held that mandamus would not lie until the claim was first reduced to judgment; and in State ex rel. White v. Clay County (46 Mo. 231), where the warrants were-drawn payable “ out of any money in the treasury appropriated for county expenses,” it was held that the warrants being given for the ordinary indebtedness of the county, mandamus could not lie till judgment on such warrants ‍‌​​​‌​​​‌‌​‌​​​​​​​‌‌‌‌‌​‌‌‌‌​​​‌‌​​‌​​​‌​‌​​​‌​‍was first obtained ; and in Howell v. Reynolds Co. (51 Mo. 15), where the warrants sued were of similar form to those in the case at bar, it was held in substance that the plaintiff could not recover without alleging and proving “that there were funds in the treasury out of which the warrants .might have been paid, and that the treasurer refused to pay them out of such funds.” So that in respect to warrants of this sort, the ‘decidedly unique position is taken by this court, that you cannot have mandamus until you have judgment, and that you cannot have the latter, unless there are funds in the treasury. In other words, that a warrant holder has nо means of compelling the payment of his warrants, except in those cases where the treasury is full and compulsory process altogether unnecessary. The ruling-made in the last mentioned case we regard as erroneous, *115and disapprove of the same, holding, as we do, that the warrants were dne and payable, regardless of the fact whether there was money in the treasury for that purpose or not, and that had plaintiff in its petition, and on trial, showed title in the warrants, we should not reverse the judgment, but because this was not done the judgment is reversed and the cause remanded.

All concur.

Eeversed.