137 N.W. 486 | N.D. | 1912
This actipn is brought by a physician to recover for professional services and supplies furnished by him for the support of the poor of Ward county. The complaint recites the performance of services and the furnishing of supplies of the total reasonable value of $750, and that “bills in due form or law, duly verified and approved by a commissioner of the board as aforesaid, were presented to the board of county commissioners of Ward'county for their consideration; and after mutilating said bills said board of county commissioners' allowed the plaintiff herein the sum of $265, and no more. Wherefore plaintiff prays judgment against the defendant for the sum of $750, less a credit of $265.” The trial court overruled a demurrer interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action. From this order defendant appeals.
The only deduction to be drawn from the complaint is that the county commissioners allowed $265 in full for the $750 of claims presented against the county, and that plaintiff has credited the $265 so allowed, and brought this action for the balance. This necessarily implies an acceptance by plaintiff of a warrant for county funds for the $265 allowed. Does the complaint show an executed accord and satisfaction barring plaintiff’s recovery in the face of the demurrer? If this action was between private parties, we would have no hesitancy in holding the demurrer not well taken, as it would not sufficiently appear that the partial payment received was under an agreement that the same should be in full for the claim and so 'constitute an accord. But
All the foregoing cases are in point. We give tbe following excerpts from some of them: “Tbe council audited tbe claim at $50. Now if plaintiff was dissatisfied with this allowance, be should not have applied for and received tbe warrant on tbe treasurer and obtained payment thereof. He must be held to have acquiesced in tbe settlement thus made. . . . There is no good reason why plaintiff is not estopped, by accepting payment of tbe amount allowed, from making a further-claim for tbe same services passed upon by tbe council.” Perry v. Cheboygan, 55 Mich. 250, 21 N. W. 333. “Tbe acceptance of tbe part allowed should be considered satisfaction for tbe whole. If tbe party desired to bring suit be should repudiate tbe allowance, refuse to accept tbe amount allowed, .and bring bis action.” Wapello County v. Sinnaman, 1 G. Greene, 413. “Tbe proposition is now made by tbe learned counsel for tbe plaintiff that, inasmuch as tbe board of supervisor's did not pass upon the several items of tbe account rendered by him, but only upon tbe account as a whole, tbe case of tbe claimant is taken out of tbe ordinary and well-established rule. Tbe force of this contention, however, is not apparent. If before accepting tbe sum of $412, tbe relator bad ascertained that tbe board of supervisors bad not passed upon tbe several items, be could undoubtedly, by refusiu ~ to accept tbe money thus offered, require that there should be an examination of and a passing upon tbe several items of bis account. Not having done so, however, be is now, as it seems to us, precluded from making any claim upon such contention.” People ex rel. O’Mara v. Cayuga County, 43 N. Y. S. R. 77, 17 N. Y. Supp. 314, wbicb would answer any similar contention of this plaintiff regarding tbe act of tbe board in passing jointly upon all bills presented and making a lump allowance therefor. In Yavapai County v. O'Neill, 3
We are not unmindful that as a general rule a defense of accord and satisfaction must be specially plead by answer to be available, and under Webster v. McLaren, 19 N. D. 751, 123 N. W. 395, proven as plead to avail a defense. But where an accord and satisfaction is alleged in the complaint, in an action against a county, we see no
Accordingly the order appealed from is reversed and the trial court will enter an order sustaining the demurrer. Appellant will recover taxable costs on this appeal.