54 So. 52 | Ala. | 1910
The appellant rendered accounts against the county of Jefferson for publishing certain notices, signed- by a member of the Legislature, preparatory to the introduction of proposed local laws, for that county, in the lawmaking body. The county authorities issued warrants for the amount of each account, in favor of the publisher. Upon first presentation to the treasurer of the county, he declined payment on the ground that for such services the county was not liable, .and that its funds could not be legally devoted to the satisfaction of that character of demand. Subsequently the clerk of the treasurer (in the absence of the treasurer, and without knowing that said warrants -were the same as those previously declined payment by the treasurer himself) paid them to the appellant. The treasurer repaid the amount of the warrants to the county. On demand, appellant refused to reimburse him for the amount so repaid by him to the county. The action is stated by the common counts, and a special count, numbered 3, setting forth the facts indicated above.
There are only two assignments of error — the first, complaining that the third count was improperly held good against demurrer; and the second, that the judgment was erroneously rendered. The latter is without merit, if the count sufficiently set forth a state of facts out of which a liability to repay the money, so paid by
It is recited in the agreed statement of facts that the treasurer’s, clerk, D. B. Hickman, “relying upon the statement of D. N. Smith (made upon the occasion of the first presentation of the warrants, we interpolate) that he intended to look elsewhere and to other parties for the payment of said claim, and not suspecting that said warrants presented to him (Hickman) for payment were the said warrants which he (Hickman) had been instructed not to pay, but believing them to be other warrants for another claim, or other claims, and under such mistake paid out of the county treasury to the said D. N. Smith, as agent of the said Ledger Publishing Company, the amount of said warrants, viz., $65.81, making no objection to such payment at that time.” From these facts it must be concluded that the payment of said warrants by Hickman was the result of mistake of fact, and that, therefore, the appellee had his right of action, as set forth in his complaint, against the Ledger Publishing Company, to recover the sum so paid to it under mistake of fact as indicated.
While it appears to the writer that the stated conclusion of his Associates is sound, he prefers to ground his conclusion, primarily, upon these summarily stated considerations: The fund out of which these warrants
The demurrer was properly overruled. The judgment is affirmed.