28 Fla. 720 | Fla. | 1891
On the 13th day of July, 1887, Elijah Johnson, the-appellant, instituted his suit in assumpsit in the Circuit Court of Wakulla county against the county of' Wakulla upon the following warrant or order on the-county treasury:
“Commissioners Court,
“21st day of March, 1868.
“Order No. 4. $500.
*722 “It is hereby ordered that the county treasury pay to John S. Moring, or bearer, five hundred dollars, to become due on the (1) first day of January, eighteen hundred and seventy-two, out of any money in the county treasury not otherwise appropriated, with interest from date. Given under my hand and seal of the court the 21st day of March, A. D. 1868.
“H. L. Henderson,
(Seal.) President Board County Commissioners
Wakulla County.
“The declaration alleging transfer of said warrant by the payee to plaintiff. To the first set of pleas filed by the defendant the court- sustained a demurrer interposed by the plaintiff that it is unnecessary to notice further. The defendant county then interposed the following pleas : 1st. “And now comes the defendant, and for plea to the first, second and third counts in plaintiff’s declaration says : That heretofore, on the fifth day of January, A. D. 1874, T. W. Brevard as the attorney at law for the owner and bearer of the order or warrant numbered (4) mentioned and set forth in said declaration, and with his consent delivered said order or warrant up to defendant in exchange for other orders or warrants of the same amount which were issued by defendant in small sums or amounts, but aggregating the amount of said order or warrant number 4, and delivered them to the said attorney, and thereby took up and satisfied and cancelled said order or war
2nd. “And this defendant, for a second jilea to the courts aforesaid says : That the causes of action therein mentioned did not accrue within five years next before the commencement of this action.”
3rd. “And for a third jilea defendant says: That the cause of action mentioned .in the common courts in said declaration did not accrue within five years next-before the commencement of this suit.”
4th. ‘ ‘And for a fourth jilea defendant says: That the several causes of action mentioned in said declaration were not presented to the County Commissioners of Wakulla County, or to the Clerk of said Commissioners within one year from the time the same become due.”
5th. “And for a fifth jilea defendant says: That it never was indebted in manner and form as alleged in the common courts in said declaration.”
Issue was joined on the first and fifth of these pleas. To the 2nd, 3rd and 4th pleas the plaintiff demurred. The court sustained the demurrer to the second and fourth pleas, overruling it as to the 3rd; and the order overruling it as to the 3rd plea is assigned as error.
The existence of an order or warrant by a Board of County Commissioners such as is sued upon herein is evidence per se that the claim for the payment of
Upon the issue as presented by the defendant’s first plea, which, in substance, was a plea of payment, the cause was tried before a jury and resulted in a verdict and judgment for the defendant county. Motion fgr a new trial was made and denied, and the plaintiff below appeals to this court. We have disposed of all the questions assigned as error, and urged in the motion for new trial as grounds therefor, except the 2nd, 3rd and 4th grounds of the motion for new trial that are as follows: “2nd. The court erred in admitting
“3rd. The verdict is not supported by the evidence.”
“4th. The verdict is against the evidence and contrary to law;.”
The consideration of these assignments necessitates some discussion of the evidence. The plaintiff, after putting in evidence the order or warrant herein-before copied, was sworn as a witness on his own be-, half, and testified that he was the owner of the warrant or order sued upon; that it was transferred to him by one John S. Moring, the payee therein named immediately after it was issued; that no part of it has ever been paid to him, and that the whole thereof is now due to him; that he had three (3) orders or warrants of defendant for $500 each, due the first of January, 1870, 1871 and 1872, respectively; that' the first two, those due in 1870 and 1871, were placed with T. W. Brevard, Jr., an attorney at law, for collection or suit; that Brevard gave a receipt for the said two orders or warrants, which receipt being produced was as follows: “Received of Green Johnson, for collection or suit,, two orders upon the treasury of Wakulla county, dated March 21, 1868, said orders due respectively on the the first of January, 1870, and first of January, 1871, each order for the sum of five hundred dollars, drawn by TI. L. Henderson, President of the
“Monday, January 5th, 1874.
“The court adjourned over from last Saturday until to-day.
“Hon. J. E. Clements, President -pro tern., in the chair ; proceeded to business, a quorum being present, to-wit: Clements, Pool, Hargrett and Gavin. T. W. Brevard, Jr., attorney for Elijah Johnson, presented, by A. Hopkins, two orders or instruments of writing-numbered three and ‘ dour,’ emulating- from the Commissioners’ Court March 21, 1868, and passed by the county to John S. Mooring, for county indebtedness to him, and by him passed to Elijah Johnson; said orders being payable to said Mooring or bearer, and made for $500 each, and payable respectively the first days of January, A. D. 1871 and 1872, with interest from-date. In the matter of the said claim of the said Johnson, it is agreed that the Commissioners provide for the foregoing orders by granting- to said Theodore Brevard, Jr., attorney for Elijah Johnson, an exchange of smaller non-paying-interest script for said indebtedness, amounting to one thousand four hundred and sixty-five dollars, being the amount, principal and in*730 terest, of said orders ; that said script be on the same footing as other script of the county, paying no interest ; and to be paid out of any funds the county may have, as other script now issued, not otherwise appropriated, said script being made in from five to fifty dollar order on the treasury until said amount above be made out, and numbered from No. 1 onward, and made in favor of T. W. Brevard, Jr., attorney for Elijah Johnson, or order ; all of which is in accordance with the petition of the said plaintiff, T. W. Brevard, attorney, &o. On motion, the foregoing settlement was ordered and passed by the board, and the proper officer directed to issue said script in accordance therewith, and make the exchange. The board adjourned till tomorrow morning, 9 o’clock.
“James M. Smith, Sk.,
“Clerk.”
The witness, George R. Smith, read the same, and then testified that the warrants that were exchanged were afterwards paid by the county of Wakulla. The defendant then introduced one Dick Hargrett, who testified that he was a County Commissioner for Wakulla county in 1878 and 1874, and that during the time that he was such Commissioner two' large warrants were exchanged for smaller ones with the County Commissioners for Wakulla county ; he thinks the two large warrants were for $500 each; the exchange was made with Mr. Hopkins for Col. T. W. Brevard. The warrants for smaller amounts were issued and turned over to Col. T. W. Brevard. Isaac Gavin testified to the same
The judgment of the court below is affirmed.