St. Joseph School Board ex rel. Donovon v. Hull
72 Mo. App. 403
Mo. Ct. App.
1897
Check Treatment
Ellison, J.

This action is based on the official' bond of defendant Hull, treasurer of the St. Joseph school board, and the other defendants as his sureties. Judgment in the triаl court was for defendants.

STATEMENT. It appears that there was issued to relator by the school board a warrant for $23,500 for the purchase money оf a school house site in the city of St. Joseph. That a suit was begun against defendant Hull enjoining the payment of the warrant. A temporary restraining ordеr was granted in the first, part of July, 1894, which was continued until August 1, when it was dissolved. The suit was dismissed in October following. Before the restraining order was dissolved, the relator dеmanded payment of the war*407rant, the defendant Hull refusing the demand on the ground of the restraining order. After it was dissolved relator demanded payment, whiсh was refused on the ground that the case was yet pending. After the ease was dismissed in October, the relator again demanded of Hull the payment оf the warrant, together with interest thereon from date. Hull denied any interest was due and refused to pay anything unless relator would accept the fаce of the warrant as payment in full. Relator thereupon received the face of the warrant and delivered it up to Hull, protesting, howеver, that he did not accept the money in full payment, and asserting his right to sue for the interest.

It is conceded that the warrant itself is not an interest bearing obligation, interest being prohibited by section 8017 of the statute of 1889. But plaintiff’s claim is really based upon an alleged nonperformance of duty ‍​‌‌‌‌‌‌‌‌​​​​​​​‌​​‌​‌‌​​‌‌‌​​​​‌‌‌‌‌‌​‌​​​​​​​‌‍by Hull, the treasurer, in not paying the warrant when demanded, whereby he rendered himself and his sureties liable on his official bond for the damages sustained, which would be the interest on the sum detained.

Offices and officers: neglect of minis-intention? * It may be conceded that defendant and his sureties are liable on his official bond for the wrongful refusal to pay money in his hands on the pre- . L J J ~ sentation of a proper warrant. “The rule is well settled that where the law requires absolutely a ministerial act to be done by a public officer, and he neglects or refuses to do such act, he may be compelled to respond in damages to the extent of the injury arising from his conduct. There is an unbroken current of authorities to this effect. A mistake as to his duty and honest intentions will not excuse the offender.” Amy v. The Supervisors, 11 Wall. 136, 138; Knox v. Hunolt, 110 Mo. 67, 74, 75; Ins. Co. v. Leland, 90 Mo. 177; Clark v. Miller, 54 N. Y. 528.

*408Tceptín¿eT Sf1”8 But in this case there was a question whether defendant Hull should have paid the warrant when demanded at the times prior to the last demand. He contended thаt he had a right to refuse payment on account of the injunction proceeding. He therefore refused to pay more than the face of the warrant after the injunction had been finally dismissed, and refused to pay even that, unless relator would surrender up the warrant. Hull tendered the money in full discharge of relator’s claim, and the latter accepted the money, though denying that it was in full of his demand. We think he thereby disabled himself from maintaining this аction. Eor the law is that one can not accept a tender and at the same prescribe the terms of the acceptance. Adams v. Helm, 55 Mo. 468. It is familiar law that a tender, to be sufficient to protect the party making it, must be unconditional. One of the ‍​‌‌‌‌‌‌‌‌​​​​​​​‌​​‌​‌‌​​‌‌‌​​​​‌‌‌‌‌‌​‌​​​​​​​‌‍principal reasons supporting this rule is thаt by attaching a condition, the person to whom the offer is made is forced to decline it, or else give up the balance of his claim; for if he accept the sum tendered, made on condition, he accеpts the condition. So it is said in Potter v. Douglass, 44 Conn. 541: “There is a material difference between receiving money duly tendered, and receiving it when offered in full of an unliquidated claim. In the one case there is no condition attending the tender, and in the other there is a condition which the party receiving the money must comply with, or he has no right to receive it. In the one case the party receiving the money may sue for more, if more is due him, but in the other casе, the offer being in full of the claim, if the money is received, the law regards it as in full, and the party can not recover more, even if more is due him. In the оne case it is always safe to receive the money, for no hazard is incurred in doing so, but it is not so in the other case, *409if the party taking the money сlaims a greater amount clue him.” Further on the same court said: “An ‘express declaration on the part of’ the person taking the money that it is not in full will not save him from the consequence following his act of taking the money.”

So it was said in Towslee v. Healy, 39 Vt. 522, ‘ ‘that when a sum of money is tendered or offered in satisfaction of a claim, and the .tender or offer is accompanied with such acts and declarations as amount to a condition that if the money is accepted, it is accepted in satisfaction, and such that the party to whom it is offered ‍​‌‌‌‌‌‌‌‌​​​​​​​‌​​‌​‌‌​​‌‌‌​​​​‌‌‌‌‌‌​‌​​​​​​​‌‍is bound to understand therefrom that if he takes it, he takes it subject to such condition, an acceptance under such an offer constitutes an accord and satisfaction, notwithstanding the party when he toоk the money claimed more, or declared he did not take it in full.” The case of R'y v. Allen, 46 Ark. 217, like the case at bar, was where the party acceрting the conditional offer did so under protest and threatened suit for the balance claimed; but he was held barred by his acceptance.

dated amount: Thе rule is not the same, where the demand is fixed or liquidated and the dispute as to the sum due is not in good faith. In such case an acceptance оf a less sum, though tendered in full, will not discharge the debt, since there is no consideration. But where there is a bona fide disagreement as to the sum due or of the debtоr’s liability, the case is different. Fuller v. Kemp, 138 N. Y. 231. The fact of the uncertainty of the claim, or an honest difference as to ‍​‌‌‌‌‌‌‌‌​​​​​​​‌​​‌​‌‌​​‌‌‌​​​​‌‌‌‌‌‌​‌​​​​​​​‌‍what is due on an unliquidated demand, furnishes the сonsideration. Maack v. Schneider, 51 Mo. App. 101; Fuller v. Kemp, supra; Nassoiy v. Tomlinson, 148 N. Y. 326.

*410“íicUIvaTUnt. *409And a demand to be liquidated must be agreed upon by the parties or fixed by law. Treat v. Price, *410Sup. Ct. Neb. 1896; Hargroes v. Cook, 15 Ga. 332. In this case the sum due on the face of the warrant was fixed, but the subject of dispute was whether anything more was due than the face of the warrant. The sum due relator beyond the sum named in the warrant, if anything, was not fixed in faсt or by law, and whether the facts or circumstances of the case were such that relator was legally entitled to damages for the delay, was a matter of honest difference of opinion, and relator, under the view we take of the law, can not avoid the consequences of his act in accepting the sum named in the warrant.

ASoIt°made?n the record: recovCounsel say that it was defendant Hull’s duty to pay the face of the warrant when relator demanded it after the temporary restraining order was dissolved. That it continued to be ^ Up time he paid it, and that he ought not to be permitted, by finally paying the warrant, to prescribe a condition that he be released from a personal liability for damages arising by reason of his refusal to perform his duty. The contention, perhaps, amounts to this — that relator had two distinct demands, one against the school district for the face of the warrant, ‍​‌‌‌‌‌‌‌‌​​​​​​​‌​​‌​‌‌​​‌‌‌​​​​‌‌‌‌‌‌​‌​​​​​​​‌‍which was to be paid through Hull as treasurer, and the other for damages against Hull for refusing to pay the warrant. But no such case was made by the petition, or by the testimony.as given by relator himself. Relator never made a claim for damages. He based his claim on the ground that the warrant drew interest. The reсord shows, without a particle of doubt, that after a refusal to pay on demand he contended for interest as a part of the sum due him on the warrant. The point is therefore not in the case and is not considered.

The judgment is affirmed.

All concur.