Morrow v. Surber, 97 Mo. 155

97 Mo. 155 | Mo. | 1888

Ray, C. J.

This was a suit by Jefferson Morrow, the treasurer of Macon county, to recover back about five hundred dollars paid to defendant Surber, on the following warrant:

‘ ‘ The treasurer of the county of Macon, will pay to William Surber $498.12 out of any money in the treasury, appropriated for payment on M. and M. bonds, belonging to M. and M. fund.

“Given at the courthouse this 8th day of October, 1879. By order of the court.

“ John H. Osborne, President.

“Test: Jas. G. Howe, Clerk.”

Wm. G. Walker was also made a party defendant, but the suit was dismissed as to him at the trial.

On the back of this warrant was the following endorsement: “Presented and not paid, for the want of funds, October 9, 1879. P. Trammel, Treasurer Macon county.”

The amended petition, after setting out plaintiff’s official character, and the fact of the issue and registration of said warrant, alleges that at the time said warrant was registered, there was a large amount of warrants drawn on said fund and registered and payable before said warrant, which fact both the defendants knew; that since October 9,1879, there was no money in the treasury, or in his hands, applicable to the payment of said warrant; and that at the time the same was presented for payment, there was no money in the treasury belonging to the M. and M. fund to pay the same, all of which defendants well knew; that on the seventh of February, 1884, the defendant Surber had defendant Walker to present said warrant for payment at the treasurer’s office; that at the time same was presented, the plaintiff was temporarily absent from his office by reason of illness, and the office was then in charge of his clerk, to whom the same was presented for payment, with full knowledge of all the facts ; that said Walker, with the view to'deceive said clerk and thereby secure the illegal payment of said warrant, falsely and fraudulently stated and represented to him that said warrant was due and payable, and that the money in the treasury, belonging to the M. and M. fund, was applicable to the payment of said warrant, which statements were untrue and known to be so by said Walker ; that said clerk was ignorant of the facts and of the prior registration of other warrants, and relying upon the representations of said Walker, paid off said warrant, amounting to $505.92, out of the said M. and M. fund ; that said payment was a mistake, induced by the ignorance of the clerk in regard to the matter, and the wilful, false representations of said Walker ; that by reason of the premises the defendants became indebted to the plainiff in the sum of $505.92, for which he prays judgment; that plaintiff brings the said warrant into court and offers to return same to defendants.

The answer admits the payment of the money on the [warrant at the time and place as alleged, and puts in issue the other allegations of the petition; alleges that said warrant was presented for payment in good faith, and that it was presented at that particular time because plaintiff had published in a newspaper that he had on hand in the treasury, belonging to the M. and M. fund, over eight hundred dollars, and notifying the holders of warrants to present them for payment ; that the law under which said warrant was issued did not provide for registration, but required the treasurer to pay the same when presented, out of any money in his hands belonging to said M. and M. fund, without regard to priority of registration ; that the said warrant, brought into court and offered to be returned to defend•dants, has been cancelled, with holes punched through the signature of the judge and clerk (Osborne and Howe), and by the words written across the same in red ink— “ Cancelled February 7, 1884,” — and the same would be worthless and of no value whatever to defendants.

Plaintiff’s reply was a general denial.

It will not be material to note the proceedings in the trial court in detail in view of the result we have reached. The amount involved is not sufficient to justify a review of the record here; but the case fairly involves a construction of the revenue law, and hence we retain jurisdiction for that reason.

The decisive facts are substantially undisputed. Defendant was holder of the county warrant above mentioned, drawn against a particular fund. It had been registered for payment. Other like warrants had been previously registered of sufficient amount to exhaust the fund in question when this warrant was paid to defendant’s agent by a clerk in charge of plaintiff’s office during the latter’s temporary absence. The fund against which the warrant was drawn was that raised by the tax of one-twentieth of one per. cent, mentioned in the act of 1865, regarding the incorporation of the Missouri and Mississippi railroad company. Acts. 1865, p. 86, sec. 13. There was evidence tending to show that the payment by the clerk was made in ignorance of the fact that other warrants were earlier registered and thereby entitled to priority over that of defendant.

The pleadings and proofs show that the application of the county fund in question to the payment of defendant’ s warrant was entirely illegal, if the law requiring the registration of warrants applies to those drawn against that fund. This is the question in the case involving the construction of the revenue law applicable to that subject. The act of 1865 ( Session Acts, 1865, p. 86, sec. 13), under which the fund in question was raised for the payment of certain railroad bonds and interest, is a special law. It provides for the creation of the fund, but it does not purport to provide a method for disbursing it. Hence, it is not inconsistent with the general law requiring all warrants to be presented and registered for payment and paid out of the funds mentioned in such warrants in the order in which they shall be presented for payment. R. S. sec. 5370.

The rule established by this statute for the registration of warrants was intended to apply the just principle which it embodies to all warrants, and thus prevent the unseemly scramble among claimants which otherwise might result where the fund was at any time insufficient to meet all the demands against it. The rule thus declared provides an orderly system of payments applicable alike to warrants such as that here in question, as well as to others of a more general nature. We, hence, consider that this warrant was not lawfully payable when presented to plaintiff’s clerk as above mentioned.

The petition stated, and there was proof tending to show, that the clerk, who assumed ,to pay defendant’s warrant, was ignorant of the facts rendering such payment improper, and the trial court so found. The petition also alleged certain misrepresentations of defendant’s agent. Defendant now claims that there was a variance between the pleadings and proofs. The petition alleged that said payment was made by the clerk by reason of his ignorance of the facts, as well as by reason of such misrepresentations. It was not necessary for plaintiff to prove all the facts alleged, but only sufficient of the allegations to make a cause of action. This he didl Such a mistake as is here described furnishes ground for recovery of the money in this action. The plaintiff is the custodian of the county funds and sues here in his official capacity. He is agent of the county for the purposes defined by law, and the public is bound to take notice of the limitations of his agency. He cannot give away county funds or disburse them contrary to law. Any such disbursement is entirely invalid. If this case were between private citizens, the undisputed facts would support the judgment given by the circuit court under the settled law of this state. Columbus Ins. Co. v. Walsh, 18 Mo. 229; Koontz v. Bank, 51 Mo. 275.

For a stronger reason the principles declared in those decisions support that judgment where the subject of the payment was the public moneys and the mistake was made by the official custodian.

There is no error in the recqrd, and the judgment is hence affirmed..

All concur.