146 Mo. 645 | Mo. | 1898
This is a suit upon the official bond of M. S. Burr, late clerk of the county court of Jackson county. The action was begun on the eleventh of May, 1894, against the sureties only. The principal was not joined as a defendant.
The petition contains twelve counts. It is alleged therein that the county of Jackson, at whose relation and to whose use the suit is prosecuted, was, at all the times mentioned in the petition, and still is, an
Plaintiff further charges that Burr received in fees, during the first quarter of the year 1891, $9,661.62, and was allowed for expenses of deputies and assistants for said quarter $1,525. It is then assigned, in the first count, as a breach of said bond that said Burr, only reported to the county court in his-return of fees received by him during said first quarter of 1891, $8,899.80, and wholly failed to include in said quarterly statement $732.68 collected by him during that time for official services, and an itemized list of the sums so collected is then given; that he at no time thereafter made any report of said fees omitted from said return, and never accounted for o.r paid the same to the county. Plaintiff further charges that the county court approved said return of fees for that quarter without any knowledge or information that the sum of $732.68 above mentioned had been received by Burr and not reported to it; and that he obtained the approval of said return by means of a false statement therein, that it contained the total of all fees collected by him during said first quarter of 1891.' Judgment is asked in this count for the penalty of the bond and that execution issue for said sum of $732.68 with interest thereon.
The answer was first, a plea of non est factum. This is based upon an alleged unauthorized alteration in the penalty of the bond, from $10,000 to $5,000; and second, that the county court, with full knowledge that Burr had collected the fees sued for and claimed the same as his own, made settlement with him and approved his reports, well knowing that said fees were not included in the same because of his claim thereto.
The replication denied the new matter in the answer, and alleged that if there were any alterations in the bond, the same had been subsequently ratified by defendants.
The parties offered evidence in support of their respective theories.
The jury returned a verdict for defendants and after an unsuccessful motion for a new trial, plaintiff has appealed.
The errors assigned by plaintiff require an examination of the rulings of the court in the admission of evidence, and in passing upon the instructions asked by the parties. Any further facts necessary to a proper understanding of the points decided will appear in the opinion.
I. Defendants make the point, which should be first disposed of, that the petition fails to state a cause of action and that the judgment must therefore be affirmed, regardless of the alleged errors complained of by plaintiff below, appellant here.
There is no allegation in the petition, that the county court, after the examination of the clerk’s return of
It is claimed that such proceedings in the county court constitute a condition precedent to plaintiff’s right to maintain this action, and plaintiff must allege performance thereof. State ex rel. v. Dent, 121 Mo. 162, is cited in support of this contention. The clerk, in that case, made a correct report of the fees received by him, and there was no charge of any fraud, deceit or failure to make a fair and proper return of his collections. No order was made upon him to pay over the excess in his hands, after deducting the statutory allowances. It was held, upon these facts, that plaintiff in the absence of such order could not recover.
The petition in the case at bar proceeds on an entirely different theory. The charge here is, that the clerk wholly failed to report or account for the fees sued for, and that the county court was induced to approve his quarterly statements in ignorance of the fact that they had been collected, and in reliance upon the false statement that said reports contained the total fees received by him.
It was the duty of the clerk to make true and correct quarterly returns of the fees collected. . His failure to do so constituted a breach of his bond. The unreported fees remaining in his hands after he had retained,
The breaches of the bond are well assigned.
II. We now come to a consideration of the rulings for which plaintiff asks a reversal.
A witness named Seidlitz was introduced by plaintiff. He was present and heard the testimony of defendants at a former trial of the case. He said that they admitted signing the bond sued on. The defendants were permitted, upon cross-examination, over plaintiff’s objection, to show by the witness, that, in the’ same testimony in which they made this admission, they also stated, that the penalty in the bond was changed, without their consent, after they signed it, from $10,000 to $5,000.
Plaintiffs could not, with any justice; introduce part of their statements as to the execution of the bond by them, and exclude the remainder.
III. The court properly refused an instruction asked by plaintiff that there was nothing in the evidence of John A. McDonald, one of the county judges, tending to show that the bond sued on was for the sum $10,000, or any different sum than $5,000, when it was signed by the sureties. This witness, during his examination, stated, in answer to a question by defendant’s counsel, that it was his impression that the bond, when it was originally presented, was for but $10,000, but he “could not swear to it;” that he thought it was changed between the first and second of January. He then added, “My impression is that on the 1st of J anuary the bond was brought there, and it was for more than $5,000, but I couldn’t say it %oas a bond for ten or fifteen thousand dollars, but it was for more than five thousand dollars, and on the second day we approved a bond for five thousand dollars.” It is true that in another part of his testimony, during the examination
It was for the jury to pass upon the weight and credit to be given to the evidence. The court properly refused to usurp their province. The evidence of the witness tended to show that the bond was originally for more than $5,000. The jury and not the court should decide how strongly it tended in that direction.
But, in addition, McDonald had testified fully, in the presence of the jury, concerning the alleged alteration in the bond. He was examined, cross-examined and re-examined, upon that subject without objection. The jury heard what he had to say about it. We can not think that a trial court is called upon to single out each witness by name, and tell the jury that the evidence of this or that one does not tend to establish this or that particular fact in controversy between the parties; or that» the court can be declared guilty of error in failing so to do. Such a rule would entitle each party to require the court to pick out each witness in the case and declare in the instructions what material facts the testimony of such witness had no tendency to prove. We can not think any such duty is imposed upon the court.
IY. We find no fault, under the facts of this case, with the instruction that the burden was upon the plaintiff to show that the alteration in the instrument sued on was made before defendants signed it. The testimony shows that it was plain to be seen that an erasure had been made in the penalty of the bond. The word “five” was written over a space from which something had evidently been erased. This was manifest from an inspection of the paper. The defense was non est factum. The burden was therefore on plaintiff to show that defendants executed the instrument as
“If nothing appears to the contrary the alteration will be presumed to be contemporaneous with the execution of the instrument. But if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing, but leaves the question of the
It was plain from the face of the paper that a change had been made in it. Its execution was denied under oath. We think the court properly held that it devolved upon plaintiff under the facts as they appear in this record to show that the change was made before defendants signed it.
Plaintiff was not injured by this instruction. The judgment can not be reversed on that account.
Y. The defendants filed a motion to require plaintiff to make Burr, the principal in the bond, a party defendant. They also asked and obtained an extension of time for pleading. The plea of non est factum was not set up until some nine or ten months after the suit was brought. Burr had died in the meantime. No action was taken upon the motion to make him a party. An instruction was asked by plaintiff, declaring that, in the regular course of procedure, defendants should have filed their answers much sooner than they did. The court was also requested to instruct that the motion to make Burr a party was such a recognition of the bond as precluded defendants thereafter from denying its execution. The court did right to refuse both instructions. Plaintiff insists that these
The instruction referred to was misleading. It. did not tell the jury what inference or deduction they were authorized to draw, or should draw from the failure to answer in the usual time, nor how that fact should affect their verdict. They were simply informed that three or more terms elapsed after the usual time for pleading before the answer was presented. They were then left to grope in the dark, and decide for themselves, whether this constituted a complete or partial defense to the action, or what, if any, effect should be given to it by them. It was properly refused.
The motion to make Burr a defendant can not be regarded as any ratification of the bond as altered. He was the principal in' the obligation. It was binding upon him. While the plaintiff had the right to sue any or all of the parties, at its election, the request to have Burr brought in to defend, can not be regarded as a confession of the execution by defendants of the instrument sued on. The defense of non est factum is not the only answer made. Defendants also rely upon settlements made by Burr with the county court. The fact that they wanted him made a party to defend the action, would not prevent them from denying the execution of the bond.
VI. The newspaper articles read in evidence, accompanied as they were by proof that some, at least, of defendants were regular subscribers of the papers in which they appeared, had no tendency to show that defendants ratified the bond as altered. The city
VII. It has been suggested in this court, that the jury should have been required to pass upon the question, whether the county court, at the time of the approval of the bond, had notice of the alteration therein and that such notice should have been shown. This point is presented here for the first time. No such question was submitted to or passed upon by the trial court. Our duty is to 'review the rulings of that court, not to pass upon a neto case. Nolan v. Johns, 126 Mo. loc. cit. 167. Neither in the objections to evidence nor in the instructions is that point made or even hinted
The trial court can not be charged with error in omitting to pass upon a matter that was never submitted to it, and which, under the theory adopted by both parties, it was not called upon to decide.
We have examined all the assignments of error and find nothing in the record that will justify us in interfering with the judgment. It is accordingly affirmed.