State ex rel. Bishop v. Keating

185 P. 706 | Mont. | 1919

MR JUSTICE HOLLOWAY

delivered the opinion of the court.

Thirty-one head of cattle belonging to A. J. Bishop, of Missoula county, were killed by order of the livestock sanitary board, because they were affected with tuberculosis. These cattle were assessed for $3,110. Bishop presented his claim for one-half of the amount to the board of county commissioners and a like claim for the remaining one-half to the state auditor. The commissioners and the auditor, in conference, allowed the claims for $2,060, and warrants therefor were delivered to Bishop and by him indorsed and delivered to his creditors, who had garnished the amount due him. Bishop thereupon appealed from the award made by the board, and instituted this proceeding to compel the auditor to allow his claim for the balance. The cause was tried upon an agreed statement of facts which, among other things, contained the stipulation that the assessed value of the cattle did not exceed their actual cash value. The auditor appealed from a judgment which directed the peremptory writ to issue.

If Bishop’s demand was unliquidated, his acceptance of the [1, 2] warrant constituted an accord and satisfaction, and he is bound by it. (Rev.' Codes, secs. 4954, 4956») If the demand was liquidated, it could be discharged only by payment in full or by payment of a less amount and acceptance thereof in writing. (Sec. 4957.)

There was no acceptance in writing, and consequently the only question for determination is: Was the demand liquidated or unliquidated? The statute (Chap: 68, Laws of 1913, as [3] amended by Chap. 140, Laws of 1915, p. 318) provides that the owner of tubercular cattle killed by order of the state veterinarian or the state livestock board shall be paid therefor the assessed value of the cattle, provided the assessed value does not exceed the actual value. Under this statute, and the agreed statement of facts, Bishop was entitled to receive $3,110, the assessed value of his cattle, which was their actual value, if his claim was a liquidated one.

“A claim is liquidated when the amount due is fixed by law or has been ascertained and agreed upon by the parties.” (5 Words and Phrases, 4174; 3 Words and Phrases (2d Series), 148; Treat v. Price, 47 Neb. 875, 66 N. W. 834; Chicago, M. & St. P. Ry. Co. v. Clark, 92 Fed. 968, 35 C. C. A. 120.)

Bishop’s demand was a liquidated one under all the [4] authorities, and the fact that the auditor was required to examiné the claim and ascertain whether it was correct did not change its character.

The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices H-urly and Cooper concur.