81 Mo. 591 | Mo. | 1884
This cause was once before in this court on writ of error, and the only matter then considered was the action of the circuit court in sustaining a demurrer to the amended petition, the same now before us, which counsel for appellant again insists is bad for the reasons urged on the former occasion. The petition is incorporated in the opinion then delivered, and the case'is reported in 72 Mo. 593. "We adhere to the ruling then made. On a retrial of the cause plaintiff'had judgment from which defendant has appealed. Many of the questions discussed by counsel in their briefs were settled by the former adjudication, and we shall only consider those not there determined. Appellant’s counsel contends that the action was barred because not commenced within five years after the right of action accrued. Section 3229 and not section 3230 is the one which governs. The suit is one in writing for the payment of money, and ten years is the limitation prescribed in such cases. The amended petition does not state a cause of ac
The evidence conclusively shows that after contracting for the materials and work which plaintiff furnished and performed, the county court borrowed all of the money on the internal improvement fund and applied it to the payment of demands not properly chargeable to that fund. The petition conformed to the ruling in Kingsberry v. Pettis county, 48 Mo. 208, and in this cause when here before. It is not, as counsel insists, a suit where the contract is to furnish the materials for the jail and perform the work done by plaintiff, but a suit upon the warrant alleging facts, showing that, although drawn upon one fund, it is to be regarded as evidence of a general indebtedness payable out of the general fund.
The judgment is affirmed.