School District No. 10 v. Collins

16 Kan. 406 | Kan. | 1876

The opinion of the court was delivered by

Brewer, J.:

This was an action on a school-district order. The defense was payment. The facts are these: On March 11th 1874, a school-district order was drawn by the director and clerk of said school district upon its treasurer, and payable to C. W. Walker, or order, out of the teachers’ fund, for $126, for teaching school. In February 1874, Walker drew upon the said treasurer in payment of certain indebtedness three several orders, amounting to $125.93, which, on the 10th of March, were accepted by the treasurer, and on or before the 16th paid by him out of the teachers’ fund belonging to the district. This was one of the orders:

Washington, Washington County, Kas.,

February 18th, 1874.

Treasurer of District No. 10: Please pay to the order of Cullemore & Brothers twenty dollars, and this shall be your recéipt to me for the same as teacher of school in said district.

C. W. Walker.

The other orders were similar. On the 16th of March, Walker, then the holder and owner of the school-district order, presented the same to the treasurer, who tendered him the three orders so accepted and paid as aforesaid, and seven cents in currency, the same making the full amount of the school-district order, but Walker refused to receive this payment, and thereafter indorsed the order to plaintiff Collins, who received the same with full knowledge of all the facts.

Was the district liable? Of course, Collins has no higher rights than Walker; and any defense good against the latter is good against the former. And we think the facts make out a defense as against either. Of course, the district cannot avail itself of any private transactions between the treasurer and the teacher, or offset a debt due from the latter to the former against its own indebtedness. But on the other hand, if Walker has received .out of the funds of the district payment of its indebtedness to him, no matter how irregularly it has been received, he is estopped from denying it to be payment. Supposing he had stolen so much money from the funds of the district in the hands of its treasurer: could not the district set off the amount thus stolen against his claim ? So, if in any way without crime he has received out of the same funds any moneys, such receipt is to that extent payment of its debt. In the case before us, after the indebtedness had nearly all accrued he draws an order, not upon any individual as such, and without naming any individual, but upon the treasurer of the district, the custodian of the funds of that corporation which is in debt to him, and specifies in the order that it shall be a receipt to him for the debt due by the district. This order is accepted and paid. Grant that it was done irregularly, and that the treasurer should have waited until the official evidence of the district’s indebtedness was presented; but as it was done, and Walker received the benefit of it, he at least is estopped from saying that it was not regularly done. He cannot say that it was a mere private transaction between himself and the individual who happened to be at the time treasurer of the district, for the order which he drew shows the contrary. He has received his pay once, and neither law nor good conscience will tolerate that he recover it-again.

It is scarcely necessary to say that after a question has been once fairly presented and decided on a demurrer, it is unnecessary, if it were proper, to raise it again by the offer of testimony.

The judgment will be reversed, and the case remanded with instructions to overrule the demurrer to the second defense, and for further proceedings in accordance with the views herein expressed.

All the Justices concurring.