142 Mo. 526 | Mo. | 1897
IN DIVISION ONE.
Relator Spaulding was a justice of the peace in the city of St. Louis from November 8, 1888, to December 1, 1890, during which time defendant Peterson was constable of the same district. As constable said defendant at the beginning of his term gave a bond in the sum of $5,000, with the other defendants as securities. The action is by relator, upon said bond, to recover the full amount of the penalty thereof. The amended petition, upon which the case was tried, contains over one thousand, six hundred counts, and each count charges three separate breaches of the bond. The second of these is that defendant, as constable, collected the fees and costs coming to relator as justice of the peace, and refused to pay the same over to him, and that payment was demanded December 1, 1890. The other two breaches relate to a failure
In proof that defendant collected the fees as charged in numerous counts of the petition, plaintiff introduced in evidence five written statements furnished him by defendant, which give in detail the style of the cases and the amount of plaintiff’s fees collected in each. The aggregate amount shown by the statements and found by the referee is $2,113.38. Plaintiff admitted that $184.70 of this amount had been .paid him by one of defendant’s deputies in satisfaction of the cost of certain cases counted upon. For this amount defendant was given credit. Plaintiff testified that the costs in none of the other cases specified in the statements had been paid him. Defendants offered in evidence eight checks made by the constable, payable to relator, dated along from April 30, 1890, to September 25, 1890, aggregating $1,304.35, which had been paid by the .bank. They also offered evidence tending to prove
1. The Missouri code requires' any new matter constituting a defense to be pleaded. Payment is a fact ordinarily not required to be negatived in the petition, and in such case is new matter, and, to be made available as a defense, must be pleaded. In such case proof of prior indebtedness is prima facie proof of liability. A general denial does not raise the issue of payment in such cases. But in cases in which non-payment is a material fact necessary to constitute plaintiff’s cause of action, it must be alleged in the petition and proved as a part of plaintiff’s case, and defendant can controvert it, under a general denial, by proof that payment was made. The rule in respect to when facts are to be pleaded as new matter, which has received the approval of this court, is this: “Whenever a defendant intends to rest his defense upon any fact which is not included in the allegations necessary to support the plaintiff’s case, he must set it out.” Kersey v. Garton, 77 Mo. 645. Bliss states the rule under the code as follows : ‘ ‘But whether, in an agreement, as to pay money, it is incumbent upon defendant to plead the fact of payment as new matter, should, upon principle, depend upon the necessity of showing the fact of non-payment as a part of plaintiff’s case.” Bliss, Code Pl. [3 Ed.], sec. 357. The New York code, as ours, requires any
2. The statute makes a constable liable to pay one hundred per cent per annum on money collected officially, in case he fail to pay the same to the party entitled thereto on demand. By section 6317 he and his sureties are made liable for money received by him on any judgment, and by section 6320 they are made subject to the penalty for failure to pay over, when requested, money collected on a judgment or other demand. This language fairly includes the fees of justices of the peace. This construction seems to have been given the statute in the case of Rose v. Cobb, 64 Mo. 464. Relator therefore had the right to proceed in the circuit court upon the official bond of the constable. R. S. 1889, sec. 6324.
3. We are of the opinion that in order to prove a waiver of the statutory penalty by course of conduct between the parties, or the manner of making and re-' ceiving payments, it was necessary for defendants to plead it. Waiver of a right relied upon by the opposite party is generally new matter, and the facts under which it is claimed should be stated. We do not, therefore, think that error was committed in this case in refusing to admit evidence tending to prove a waiver. McCullough v. Ins. Co., 113 Mo. 616; 21 S. W. Rep. 207.
4. The finding of the referee was general, without specifying the particular counts in which the con.stable was found to have been in default. Such a find
IN BANC.
The foregoing opinion, filed in the first division by Macearlane, J., is now adopted as the opinion of the majority of .the Court in Banc. The judgment is therefore reversed, and the cause remanded,