Treasurer of the State Lunatic Asylum v. Douglas

77 Mo. 647 | Mo. | 1883

Sherwood, J.

Action on a bond executed and delivered to, the Treasurer of tbe State Lunatic Asylum.

There is nothing in the point that the name of the treasurer is not inserted in the' bond.

Equally untenable is the objection that the names of' the obligors are not inserted in the body of the bond. As shown by the authorities cited by plaintiff, this point is well settled in this State.

Now, as to the blank left in the bond in respect to the board of Martha M. Blue. It seems from the authorities, that if the blank is caused by an omitted word or words,, which being omitted, the instrument would have no legal existence, that then, parol, or oral evidence, is incompetent to supply such omission, and the defect is fatal. 2 Parsons Contr., 563. But there is no doubt that where the defect is not of suchj a serious character, and where, as here, it appears that the whole contract was not reduced to writing, and the writing does not purport to be a complete expression of the intention of the parties, that is to say, of the entire contract, but only a part thereof is reduced to writing, that in such case the portion thus omitted, the intention thus remaining unexpressed in writing, may be supplied by parol. O’Neil v. Crain, 67 Mo. 250, and cases cited. The bond in the case at bar, shows incompleteness upon its face, in regard to the compensation to. be paid for the board of the patient. There would seem to be no room to question that the obligors bound themselves to pay for the board of the patient, and if they failed to contract respecting the rate, the law would, imply a reasonable one. In this case, however, judging from the items of credit in the account, there was no misunderstanding as to the amount to be charged for board. And under the statute, the account officially certified by the superintendent as to the amount due is prima facie evidence of such amount. Gen. St. 1865, p. 305, § 9. And no objection was taken as to the sufficiency of the,certificate here.

So far as concerns the attorney’s fee demanded in the petition, the statute, (Gen. St. 1865, p. 312, § 49,) authorizes the court in any suit-instituted in behalf of the asylum to assess and tax as costs a reasonable attorney’s fee.

This case was tried conformably to the. theory heretofore announced, and judgment affirmed.

All concur.