Ledger Publishing Co. v. Miller, 54 So. 52

Ledger Publishing Co. v. Miller

54 So. 52 | Ala. | 1910

McCLELLAN, J.

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 *441the appellee, arose against appellant; for the agreed statement of facts supports, without.doubt, the allegations of the count. Since it is not contended to the contrary, we assume that, in fact, the county funds could not be legally appropriated to the liquidation of the accounts to satisfy which the warrants paid were issued by the county authorities. The payment of the warrants was, therefore, illegal, and the treasurer was liable to the county for the return of the sum thereof to the county treasury. Accordingly his repayment of the money was an act consistent with his liability.

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 *442were without legal authority paid was a trust fund. The Ledger Publishing Company, which received the sum of such warrants, was not entitled thereto. The county of Jefferson could have sought and secured the recovery thereof from the Ledger Publishing Company, notwithstanding there was no fraud, or mala fides affecting the presentation or payment of the warrants. The existing liability of the treasurer upon his bond to the county was not exclusive.—Wolffe v. State, 79 Ala. 201, 58 Am. Rep. 590; Taylor County v. Standley, 79 Iowa, 666, 44 N. W. 911. The appellee having satisfied a liability on this account against the Ledger Publishing Company in favor of the county' of Jefferson, the law implied a promise on the part of the Ledger Publishing Company to reimburse him in the sum so paid by him in satisfaction of the liability of the company to the county. The principle applicable is stated and illustrated in Beard v. Horton, 86 Ala. 202, 204, 5 South. 207; Walker v. Smith, 28 Ala. 569. See 27 Cyc. pp. 833-836. Whether the warrants were paid voluntarily, or under mistake of law or of fact, does not, in my opinion, affect the question.

The demurrer was properly overruled. The judgment is affirmed.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.