250 S.W. 741 | Tex. App. | 1923
The claim of appellee for fees for compensation during his first two years of service as treasurer was, as admittedly shown by the evidence, a legal claim in its entirety, chargeable against the county. Was the taking of the $50 monthly by the appellee wholly inconsistent with his right to the claim in its entirety? The general principle is that the acceptance of a less sum than is actually due cannot legally be a satisfaction and will not operate to extinguish the whole debt upon the ground that there is no consideration for the relinquishment of the excess due beyond the sum paid. There is no pretense in the evidence of any compromise and settlement respecting disputed compensation between the treasurer and the county commissioners' court, so as to furnish a consideration for the taking by the appellee of the $50 monthly. And the order of the commissioners' court is not binding on appellee as fixing the amount to be paid by law, for it was not the purpose of the commissioners' court, by its order of February, 1918, to compensate the treasurer upon the basis of a commission, but to fix "a salary" for him; and the order was therefore illegal and void. Hunt County v. Greer (Tex. Civ. App.)
Neither, under the circumstances of the case, can it be properly said, it is believed, that the appellee is legally precluded from availing himself of the nullity of the order of the commissioners' court to have further legal compensation upon the ground of waiver. The appellee protested against the order as soon as and when he first ascertained that the commissioners' court was insisting and claiming that the order so made by them definitely fixed his full compensation as treasurer, and he even made a formal written claim to the commissioners' court for his fees instead of the fixed sum provided by the order. On the refusal of the claim by the commissioners' court, the appellee filed suit to enforce payment of the entire claim. At the time of the claim and the filing of the suit it appears that the appellee had not voluntarily "paid over to the county any of the funds on hand." Ordinarily a protest is evidence of an unwillingness to acquiesce in an illegal demand. The protest and the formal demand for the payment of the commissions allowable by law, in the light of the further fact that the funds in the appellee's hands had not been surrendered over to the county in relinquishment of this office at the time of the claim in suit, would be circumstances sufficient to establish the fact that appellee did not waive the right to further compensation above the $50 paid each month. A determination of the question of waiver by voluntary payment must depend on the particular facts of each case, and if such doctrine is applicable at all in a case of this kind, there is involved in the court's judgment a finding on this question in favor of the appellee.
There is a clear distinguishment between the facts of the instant case and the case of Hunt County v. Greer, supra. In the latter case the county treasurer went out of office at the end of four years and made full settlement with the county and turned over all county funds in his hands. The treasurer there made no protest, as here done, against the previous orders of the commissioners' court, and made no claim before his retirement from office for the balance of his legal commissions. In the facts of that case it was, as the court there determined, inequitable to permit him to recover back money voluntarily paid over to the county, under the circumstances of the case.
The judgment is affirmed.
