190 Mo. 163 | Mo. | 1905
Lead Opinion
This is an action upon ninety-five warrants issued by the county of Barton to different persons, and sold and delivered to the plaintiff.
The petition was filed on the 5th day of April, 1902, and contained a separate count upon each warrant. In its answer defendant offered to let judgment go for principal and interest upon all counts except the 10, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 42. As to these, defendant offered to let plaintiff take judgment on each of them for the amount of the principal of the warrants, but denied defendant’s liability for any in
As the same questions are involved with respect to all the warrants mentioned in these counts of the petition, any one of them may be taken as an illustration. "We will, therefore, take the warrant sued upon in the 12th count, which is numbered 1,699. It was issued to Lee Livingston by the county court of said county on February 8, 1898. This "warrant was presented to the county treasurer for payment, as shown by his warrant register and his indorsement on the back of the warrant, on the 11th day of February, 1898, by the plaintiff, Simeon Isenhour, and was by the treasurer protested for the want of funds with which to pay it. When this warrant was presented to the treasurer by Isenhour there were two blank printed assignments (so called for convenience) on the back of it, the first of which was signed by Livingston, the payee, as follows:
“For value received................ assign the within warrant to..............this........day of ............,1......
“Lee Livingston.”
After the institution of this suit and after the warrant was presented to the treasurer by Isenhour, on the 11th day of February, 1898, for payment, this blank form was filled out by the payee Livingston so as to read, at the time of trial, as follows:
“For value received I assign the within warrant to Simeon Isenhour, this 11th day of February, 1898.
“Lee Livingston.”
'
The warrant now under consideration, and which was introduced in evidence by plaintiff, is as follows:
“State of Missouri.
“$172.40. No. 1699.
“ The Treasurer of the county of Barton.
“Pay to Lee Livingston one hundred and seventy-two and forty one-hundredths dollars out of any 'money in the treasury belonging to the County Revenue Fund. Given at the courthouse in Lamar, Mo., this 8th day of February, A. D., 1898.
“By order of the County Court.
“Wm. P. Scott, President.
“Attest: Chas. H. Smith, Clerk.
“By Geo. Rumsey, Deputy.”
The indorsements on the back of said warrant at the time of trial were as follows:
“The within warrant presented for payment, and no money in the treasury for that purpose, this 11th day of February, 1898.
“Douglass Inglish, County Treasurer.”
“For value received I assign the within warrant to Simeon Isenhour, this 11th day of February, 1898.
“Lee Livingston.
“For value received..........assign the within warrant to..................this..........day of ,1
The only error complained of is as to the action of the trial court in allowing interest upon said contested warrants, which had been sold and assigned to plaintiff by blank indorsements.
In support of its contention defendant relies on sections 6798, 6799 and 6808, Revised Statutes 1899, which read as follows :
‘‘ See. 6798. No county treasurer in this State sb all pay any warrant drawn on him unless such warrant be presented for payment by the person in whose favor it is drawn, or by his assignee, executor or administrator ; and when presented for payment, if there be no money in >the treasury for that purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same.
“Sec. 6799. All warrants drawn on the treasurer of any county shall be assignable, and every assignment of any such warrant shall be in the following form: For value received, I assign the within warrant to A B, this........day of............, 19..... (Signed) CD. No blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same.”
“Sec. 6808. Any county treasurer violating any provisions of this article shall be deemed guilty of a*170 misdemeanor, and shall, on conviction, be punished,” etc.
Plaintiff, in support of the judgment of the court, relies on section 6771, Revised Statutes 1899, which is as follows:
“Sec. 6771. He shall procure and keep a well-bound book, in which he shall make an entry of all warrants presented to him for payment, which shall have been legally drawn for money by the county court . . . stating correctly the date, amount, number, in whose favor drawn, by whom presented, and the date the same was presented'; • and all warrants so presented shall be paid out of the funds mentioned in such warrants, and in the order in which they shall be presented for payment.”
County warrants are creatures of the statute, and can only be issued in accordance therewith, but when no rate of interest is prescribed upon their face, they bear interest at the rate of six per cent per annum, as provided by section 3705, Revised Statutes 1899, after presentation to the treasurer of the county by which issued, •and failure to pay because of there being no money in the treasury for their payment. [Robbins v. Lincoln County Court, 3 Mo. 57; Skinner v. Platte County, 22 Mo. 438; State ex rel. v. Trustees, 61 Mo. 155.] Such warrants are merely evidences of indebtedness, nonnegotiable, and the Legislature had the power and authority to prescribe their form, by whom they should be signed and attested, prohibit “their payment by the county treasurer of the county issuing them, unless presented for payment by the person in whose favor drawn or by his assignee, executor or administrator, as well as also to provide that when any such warrant be presented for payment, if there be no money in the treasury for the purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same. It also had the power and authority to provide that such warrants should be assignable, to pre
‘ ‘ The court declares the law to be that, if the court finds from the evidence that the warrants in question were not presented to the treasurer of the county for payment by the original payee therein, but that they were sold, transferred and delivered by such payees to plaintiff by blank assignment, that is, by -writing their names on the back of such warrants, but not filling in the name of the plaintiff or the dates of such transfers, and were then in that condition produced by the plaintiff to the treasurer for payment, then such warrants did not commence to draw interest, and the finding -will be for the defendant upon the issue involved.”
This declaration of law was refused, which defendant insists was error.
That a county warrant only draws interest from the time of its presentation to the county treasurer for payment by the person in whose favor it is drawn, or by his assignee, executor or administrator, agent or clerk, and payment refused because of there being no money in the treasury with which to pay it, is too clear for argument; but in the case at bar the plaintiff Isenhour presented the warrant and demanded its payment in person, when, although the equitable holder of the warrant, he was not its assignee, as the assignment was in blank, and the legal title to the warrant was still in the payee, Lee Livingston. Under such circumstances, plaintiff had no legal title to the warrant or authority to even fill the blank, by inserting his name therein, because the statute, section 6799, expressly pro
The indorsement on the back of the warrant by the county treasurer, as follows: “The within warrant presented for payment, and no money in the treasury for that purpose, this 11th day of February, 1898,” was in express violation of the statute, and void, and for which he was guilty of a misdemeanor and liable, on conviction, to be punished according to law, and to be removed from office. [Sec. 6808, R. S. 1899.] This could not, therefore, in the remotest degree affect in any way the rights of the parties to this action.
Plaintiff contends that it is apparent that the first clause of section 6798 is intended to avoid payment of warrants to persons who may have become possessed of them without right, in which event the county would be compelled to pay a second time; to which we may be permitted to add: and to prevent county officials from receiving in payment of the revenues due the counties such warrants at their face value, holding them, and thereafter turning them over to the counties upon their settlements therewith of such revenues, with the accumulated interest thereon, which could not well be done in case the warrants bé presented by the payee, his legal representative, or assignee. We do not see that section 6771, Revised Statutes 1899, which provides that the treasurer shall keep a book'“in which he shall make an entry of all warrants presented to him for, payment, which shall have been legally drawn . . . stating correctly the date, amount, number, in whose favor drawn, by whom presented, and the date the same was presented; and that all warrants so presented shall be paid out of the funds mentioned in such warrants, -and in the order in which they shall be presented for payment,” is in any way out of harmony with what we have said.
In the first place, the treasurer violated his duty in recognizing the warrant under the circumstances, and indorsing upon it “presented for payment, and no money in the treasury for that purpose. ’ ’
In the second place, as plaintiff wa,s in possession of the warrant at the time, and in person presented it for payment, it will be presumed that he was its owner and acting for himself and not for some other person; besides, he is prosecuting this suit as owner, which fact would seem to be inconsistent with the idea or presumption that another person was the owner and he was acting for him.
The statute with respect to the county warrant under consideration is in all of its material provisions as” much part thereof as if it were written or printed upon the face of it, and is as binding upon the payee therein and the plaintiff, as its holder, as if they had expressly agreed to all of its provisions. [State to use of Wolff v. Berning, 74 Mo. 87; Wanschaff v. Benefit Society, 41 Mo. App. 206; Reed v. Painter, 129 Mo. 674.] And as a condition to plaintiff’s recovery of interest upon such warrant, and the others in contest, it devolves upon him to show that he had complied with the terms of the statute in regard thereto. This is an action at law, as distinguished from one in equity, and is, of course, governed by the law in such cases.
Our conclusion is that the judgment should be reversed and the cause remanded, with directions to the trial court to enter up judgment in favor of plaintiff for the amount of the face of the warrants only.
Dissenting Opinion
DISSENTING OPINION.
This is an action to recover on ninety-five county warrants* jury scrips, etc., issued by the defendant county. The petition contains ninety-five counts, one for each of the demands sued for. Demand and protest for non-payment is alleged on February 11th, 1898, and interest, at six per cent, is asked from that date. An assignment is also alleged of said demands to the plaintiff. The answer consents to judgment, for plaintiff, as prayed, upon all the counts except the 10, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 42, and as to these the defendant consents to judgment for the principal of the demands, but denies that it is liable for interest thereon. During the trial the parties admitted that the warrants sued upon in said counts were all presented by the plaintiff to the county treasurer, at the date alleged, for payment; that at said time said warrants were endorsed in blank by the original payees, and .had been by the payees previously sold to the plaintiff, but the name of the plaintiff as assignee was not written in the blank assignment, which was in the form prescribed by the statute and printed on the back of the warrant, nor was the date of the assignment filled in the space left therefor; that after the institution of this suit, the original payees wrote in the blank spaces in said printed assignments, the plaintiff’s name, as the assignee, and the 11th of February, 1898, as the date of the assignment. It was also shown by the evidence that such warrants were presented by the plaintiff to the county treasurer, on the 11th of February, 1898, and the treasurer indorsed on each, “within warrant presented for payment, and no money in treasury for that purpose, this 11th day of February, 1898.”
I.
The only error assigned is the action of the trial court in allowing interest upon the warrants that had been assigned to plaintiff by blank indorsements.
In support of its contention defendant invokes sections 6798, 6799 and 6808, Revised Statutes 1899, which provide, respectively, as follows:
“Sec. 6798. No county, treasurer in this State shall pay any warrant drawn on him unless such warrant be presented for payment by the person in whose favor it is drawn, or by his assignee, executor or administrator ; and when presented for payment, if there be no money in the treasury for that purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same.
“Sec. 6799. All warrants drawn on the treasurer of any county shall be assignable, and every assignment of any such warrant shall be in the following form: for value received, I assign the within warrant to A B, this — — day of---19--. (Signed) C D. No blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same. ’ ’
“Sec. 6808. Any county treasurer violating any provisions of this article shall be deemed guilty of a misdemeanor, and shall,-on conviction, be punished,” etc.
The plaintiff supplements these references by section 6771, Revised Statutes 1899, which is as follows: “The treasurer shall keep a well-bound book in which he shall make an entry of all warrants presented to him for payment . . . stating correctly the date, amount,
It is conceded by the parties that the rule has been, in this State, since 1831, that county warrants bear interest from the date of their presentment for' payment and refusal to pay because of no money applicable thereto. [Robbins v. Co. Court, 3 Mo. 57; Skinner v. Platte Co., 22 Mo. 438; State ex rel. v. Trustees, 61 Mo. 158.]
The defendant contends that as a blank indorsement does not transfer any right to a warrant under the statute, and as the indorsement of these warrants was in blank when they were presented for payment, and as they were presented by the plaintiff and not by the original payees, therefore, there was no such presentment as would have authorized the treasurer to pay them, and hence, the transfer and presentation being void, no interest can be recovered on such warrants. Counsel for defendant admit that warrants need not be presented for payment by the original payee in person, but may be presented by a clerk, agent, or attorney of the payee, and this is also clearly contemplated by section 6771, Revised Statutes 1899, which requires the treasurer to note “by whom presented.”
In other words, defendant claims that the presentation of these warrants to the treasurer by. the plaintiff, did not enure to his benefit, and could not start the running of interest in either his favor or that of the original payee — not in his favor, because, the indorsement being in blank, it conferred no right in him to the warrant or to demand payment thereof in his own favor, and not in favor of the original payee, because no presentation in his favor by the plaintiff was made or authorized to be made.
Whatever the purpose of the lawmakers may have
There was, concededly, a demand made upon the treasurer, for the payment of these warrants on the llth day of February, 1898. That demand was made by the plaintiff. The blank indorsement was insufficient to vest a legal title to the warrants in the plaintiff. Therefore the legal title was then in the original payees.
But although the legal title was in the original payees, it was a mere naked legal title, for the plaintiff had paid his money to the original payees for the warrants, and therefore was the owner thereof in equity, and could have maintained a suit in equity to compel the original payees to transfer the legal title to him. [Craig v. Mason, 64 Mo. App. l. c. 347.] In making the demand, therefore, the plaintiff was not a mere volunteer or intermeddler.
It has already-been pointed out that the statutes relating to county warrants make no provision whatever for the payment of interest thereon, but that this court has held that they do bear interest and that the general statute in reference to interest is as applicable to such warrants or the debts they evidence, as to any other character of debts. The Legislature evidently intended that such should be the case, and the failure to provide specially for interest was not a mere casus omissus. For ever since 1865 there has been a pro
It is obvious, therefore, that the Legislature intended that the general statute in reference to interest should govern such cases. The statute in referring to interest (sec. 3705, R. S. 1899) provides that in the absence of an agreement between the parties, interest shall begin to run after the debt becomes due and demand shall have been made. But the statute contains no provision or regulation as to the demand. Hence the general rules of the common law as to demand apply, for the common law is the law in this State except so far as it has been modified by statute. [Sec. 4151, R. S. 1899.]
The general rule of the common law is that a demand must be made by the party to be benefited ' thereby or by his duly authorized agent. [9 Am. and Eng. Ency. Law (2 Ed.), 213; 16 Ibid, 1022.]
To this general rule there are well-recognized exceptions, for instance, if the demand is made by a third' person, the debtor has a right to require reasonable evidence of the authority to make it, and if he fails to do so at the time the demand is made he cannot be heard afterwards to defend on the ground that such person had no authority to make the demand. [Ibid, 213.] Or if the refusal to pay is based upon some other ground than the right of the person making the demand to do so, he cannot be heard afterwards to defend upon such want of authority. [Spence v. Mitchell, 9
The main object of a demand is to give the debtor an opportunity to pay the debt and thereby save the costs of a suit that might be brought against him or to save the payment of interest. The debtor can refuse to pay to one who is not the original creditor or who is not authorized by the creditor to make demand therefor, but he must put his refusal upon that ground, because if he does, the defective demand could then be remedied at once or the authority be shown to act for the creditor.
These principles of law apply as well to county warrants as to debts due by one citizen to another, for the Legislature has not seen fit to make any other rule, but has left the matter subject to the general law, and it is plain that they so intended, for they expressly changed the law as to the blank assignment of such warrants, and did not change it in any other respect, and hence, upon the principle of “Expressio unius, est exclusio alterius,” it follows that they did not intend to change the law in any other respect, and, therefore, the courts have no power to do so by construction.
But aside from this, the demand in this case was good at common law. It was good as to the.plaintiff, because he was the equitable owner of the warrants, and therefore had a right to make the demand. When he paid his money to the payees for the warrants he had a right to use their names both for the purpose
At common law the court dealt only with the record plaintiff, who was liable for costs and who alone could appeal, and if he died the suit abated, and the death of the use plaintiff had no effect upon the action, nor was his interest deemed necessary to be shown, it being held sufficient to show a right to recover in the record plaintiff. [15 Enc. Pl. and Pr., pp. 488-489.] But the modern doctrine is that the use plaintiff controls the litigation and'the record plaintiff cannot interfere, or dismiss the suit, or release the cause of action, or receive satisfaction of the judgment. [Ibid, pp. 491-492.]
“Whenever it is necessary to the assertion of the rights of the real party in interest, he may bring suit for his own benefit in the name of the person having the
These principles have also received the approval of this "court. [Chauvin v Labarge, 1 Mo. 557; Thomas v. Cox, 6 Mo. 506; Wooden v. Butler, 10 Mo. 716; Alexander v. Schreiber, 13 Mo. 271.]
The inevitable and logical consequence flowing from these rules is that the assignee of an unassignable chose in action or of an imperfectly executed assignment of a chose in action, has a right to use the assignor’s name in any steps that may be necessary to give full effect to the assignment. One of such steps is to demand and receive payment in the name of the assignor. Another step is to make a demand so as to start the running of the interest.
The abstract of the record in this case shows that it was admitted, in open court, during the progress of the trial, that the.warrants were presented for payment by the plaintiff and further shows that they were indorsed by the county treasurer, “Within warrant presented for payment, and no money in treasury for that purpose. ’ ’ It does not appear whether the plaintiff demanded payment in his own name and right or in the name of the original payee. But no objection was made at the time to the authority of the plaintiff to make demand. On the contrary, it appears affirmatively that the demand was admitted, and that payment was refused solely on the ground that there was no money in the treasury to pay them.
There can he no doubt that if the defendant was a private citizen he could not be heard now to say that
The provision of the statute in this respect places blank assignments pf warrants in exactly the same position that choses in action were at common law, that is, prohibits such assignments. It has been above pointed out that even according to the original, strict common law, an assignee of a chose in' action had a right to use the name of the assignor for all the purposes that were necessary to fully carry the assignment into effect. This being true, a county warrant that has been assigned in blank stands upon the same footing and is governed by the same rules.
The result is, that the defendant here cannot be heard to now say that no sufficient or legal demand was made upon it, and that the interest began to run from the date the warrants were protested for nonpayment.
For these reasons I think the judgment of the circuit court should be affirmed, and, therefore, dissent from the opinion of the majority in this case.