*1 amends petition immaterial unless her and seeks a bills controversy qualification recovery therefor. over the plaintiff a new since we have awarded juror not be considered need trial. Cooley is reversed and caused remanded.
Bohling, GC., concur. a- foregoing opinion C., is Westhues,
PER CURIAM. The judges All opinion of the court. concur. dopted as the S. County, Appellant. Whalen Buchanan William C. (2d)W. Two, December Division ' Meyer C. appellant.
Maurice and W. Hoffman *2 W. B. Dunccm respondent. for
COOLEY, C. Action $200, to recover balance claimed be due respondent, plaintiff below, ten months, March December, The inclusive. ease at law, jury.
one tried to No the court without a instructions were given. asked or $200, was month for involved, appealed. the ten months defendant practically undisputed. January 1, 1931, facts are From during involved, here Oscar time F. Lollis was County. date, January 1,-1931, As of Buchanan he submitted in writing to the court his which, with judge court, presiding the “O. E.” of the reads: Lollis, County “Oscar F. Clerk. Joseph, Mo.,
“Buchanan County, St. Jan. County Court, “To Honorable ‘1Gentlemen: “I to, you my appoint- have the honor and do herewith submit to ensuing year beginning ments for the January 1st, 1931, as follows: Whalen, Deputy. “W. C. Chief Deputy.
“J. Timberlake, Class Finch, Deputy. “Mont Morgan, “Cleve *3 “Thos. Llafet, Class, B. Deputy. “Mary Ferneau, Class A
“Hoping you your will way approve see clear the above appointees wishing you throughout mentioned a lot of success your administration, I am truly,
“Yours Lollis, Oscar F. Clerk. County “OFL/MF “0. Boyle, E. H. J.
Judge.” “Presiding above-quoted (to plaintiff’s instrument was be Exhibit here- mentioned)
after and was admitted in evidence over defendant’s ob- jection. January 10, 1931,
On following court made the rec- entry upon ord its records: Whalen,
“Oscar Lollis, County appoints Wm. C. J. Timberlake, Finch, Morgan, Mary Mont Cleve Thos. B. Llafet and deputies January 1st, by Ferneau as approved elective Same the court.”' entry
No appears upon other record Mr. relative to Whalen records, court’s nor other further Whalen clerk shown. as He continued to act deputy, discharging office, resigned all the duties of that until Lollis May, changed appoint- clerk in 1934. Lollis never his “any deputy.” ment or status as chief clerk to other class months, January 1, For fourteen Whalen to March paid per year. $160 $1920 month at the rate of (The to.) will months, statute later be referred For the next ten December, inclusive, involved, March to the time here he was paid per month, statutory salary (It $140 of a Class' appear December, 1932.) much he was after how “ ”' vouchers,
In the made out the ten clerk, for months paid Whalen $140. the amount illus- involved stated as To : trate
“Payroll Co. Clerk—Mar. $291.67 Oscar F. Lollis 140.00 C.W. Whalen 100.00 Thos. B. Llafet 100.00 Mont Finch 100.00 Mary Ferneau 100.00 A. Timberlake J. 100.00 Jack Curtin Lollis, F. Co. Clk. “OK Oscar 31, 1932, $931.67
“OK Mar. Maupin, Auditor” “E. P. vouchers, April, those November October, those In four of followed, December, 1932, respectively, by name is Whalen’s A,” Dep.,” A’Deputy” “Class A “Class “Class designation, ’ ‘ ’ ‘ In paid, $140. the amount Deputy, followed appears, followed said amount of name stated other six In vouchers other listed re- some those are $140. per month. re- per month, in others Where listed to ceive B $125, other are ceive to as sometimes referred (whereas appointed they deputies), Class A some- their classification is not mentioned. times Both Lollis and testified that the of Whalen’s reduction protest of both. Plaintiff was made over the was never any change reducing him to Class A notified of *4 salary”' protest. his Lollis deputy, “just a reduction of made over — he his that never protest, that the was made over had reduction A that deputy, to Class the deputy Whalen from chief and reduced did, calling for only as he reason he had made out said vouchers only County $160, was “The Court that to Whalen instead of Court, County budget set-up the a my office, the allowed say right which I cannot sum, the exact amount of stipulated certain they that set out not sufficient to now, anyway, amount was but the salary Deputy, on this voucher here it calls for of Chief so pay the Well, there $140.00, which the of a shows County I Clerk’s officethat think, of record don’t matter ’’ A Deputy. Deputy from Chief to Class ever that he was reduced “budget as was no evidence we add there In this connection provided to the amount or as County Court” set-up reference thereto in office, except the inferential County Clerk’s testimony. Lollis’ excerpt quoted the above opinion that record we are of On this right. circuit court is At in force, the time here involved was applying to Buchanan Section Bevised Statutes (Mo. Ann., p. 7050), reading Stat. as follows: Deputies paid. “Sec. allowed and to be col- salaries —The revenue, courts, lector clerk of the circuit and clerk criminal county county highway engineer and assessor county any deputy, such shall each be to one chief which entitled deputy appointed by paid salary chief shall be said official and twenty per year, paid and nineteen hundred dollars to be same officers.” manner as the section, revenue, provides
The next that the collector assessor, county court, deeds, treasurer, clerk of the circuit recorder of officer,” “and shall each such a other be entitled “to deputies assistants, appointed number of and officer,” may necessary, as deem which and C, defining BA, are Classes and each and assistants to be divided into fixing are defined as of each. Class therein year. $1680 salaries at deputies” “Assistants and their fixed Lollis, testimony, explained his the difference between duties performed deputy” and those devolving “chief showing more re- deputy that other the duties of deputies. For sponsible than those or other and onerous in Section specifically is not mentioned some reason the that he is 11857, supra. assuming purpose of the case But for “any county officer,”' the general language in the other included distinction between statutory provisions to make to seem referred provided deputy” the “chief Section relating to contemplated 11857. Statutes by Section and assistants and, if har- together possible, subject the same are be construed 11856 author- Section given to all provisions. monized and effect deputy court, appoint a chief clerk, not the izes the deputy pursu- appointed chief salary. Whalen was and fixes only for appointment original read While his ant to statute. that recognized there- thereunder and to act one Clearly he and coun- holding appointment. as under that after he continued un- that ty appointed him considered who had county court con- Even the deputy. as chief der months two after regard least treat him so tinued January and Feb- viz., during one of the named expiration for chief ruary, months he which two one question appointed that he was *5 may below, and suggested year raised, or not raised is not here clerk, county never revoked Lollis, the in the ease. Toetreated deputy, a of appointment new that made nor contrary he On the changing plaintiff’s status. order 38 recognize plaintiff
to as Ms of There was no order county record of the court purporting change plaintiff’s to status as chief deputy, body if that authority change. had to make such Appellant presents in its brief two contentions: that First the court in admitting plaintiff’s erred 1, and, Exhibit that second, plaintiff having, for question, the months in received and ac cepted pay as deputy claiming for Class A is estopped more.
On proposition appellant argues first that being a court record, speak by and, can its from the record cases cited, it thought would seem the further is intended to be ad- vanced that its writing. contracts argued must be It is further right that the county court had the to the classification of the clerk’s deputies, changing compen- with result of their sation, (though making effect), and did so order to that record by simply paying them lower salaries. opinion
In our 1 Exhibit properly admitted evidence. place 11856, In the supra, gives first Section cleric the right appoint says deputy salary. a chief It and fixes noth- ing provide about classification. 11857 Section for classifica- imply, tion and fixes also, salaries each class. It seems to that may court exercise discretion as to the number of give may appoint. and assistants But if we are to full sections, effect to both 11857 Section cannot be held to authorize “classification,” provided, deputy,” provided as therein “chief 11857, A” by Section “Class Section as a appoint because Section authorizes the cleric to “chief salary year, leaving, deputy” per by at a if it- construed self, nothing salary do fixed court to but statute, A” deputies while Section fixes the of “Class salaries for and lower or assistants provided B 11857 (assum- Classes therein for. If Section and C ing applies county clerks) it all be construed to mean including deputy”' provided “chief Section construing repugnancy By Sec- would between two sections. (as referring applied county clerks) tion 11857 specifically provided deputy” assistants other than the “chief repugnancy Section avoided. We so construe such it. properly admitted evi-
For reason Exhibit was another gave the names respondent deputy” It dence. as “chief named by the deputies appointed classification the other approved appointments clerk. Those 10, 1931. That record order referred January order record of stating or classification of names said Exhibit but without
39
appointed.
persons therein
That paper,
appoint-
clerk’s
—the
ment of
addressed to the
was
court and
on
—was
in
body.
file
the archives of that
It explains
county,
what the
court
approving by
January
was
its order
10th, and,
think,
of record of
we
may be
of
part
considered
effect as
the order. Without
it said
would not
entry
order
be understandable. With it
the record
this
clear. Under the facts and
of
ease this
circumstances
conclu-
sion seems to
sense of
us
common
the matter
not
conflict
and
governing county
with established rules
courts
think that,
and we
support
Riley
96
principle,
318,
it finds
v. Pettis
Mo.
As to
proposition,
the second
is not barred
recovery
ground.
pleaded
Estoppel
of
on that
is not
and in order
specifically pleaded.
be
to
available as defense it must
[Missouri
Co.,
988,
330
1011,
Loan
Great
Life
Mo.
Cattle
Co. v.
Southern
Ins.
might thus sum
52 S. W.
11
cases
We
(2d)
(7-9), and
cited.]
marily
But, further,
do not
dispose of this
facts
contention.
settlement, as there
estoppel.
show
There was here no
of
evidence
strongly
City
Moberly,
was in Galbreath v.
Mo.
cited
of
and
simply
by appellant.
paid plaintiff
relied
accepted
protest.
it
than he
less
was entitled
and
to
acting,
not misled
was
for which it
by plaintiff.
prejudice
induced
to its
into action to
detriment
al.,
et
rel. Moss v. Hamilton
subject,
on this
State ex
[See
Loan Co.
(en banc),
Missouri Cattle
“If there was the Crawford relator at ruled, rate as we have then nothing in the conduct and acts relator which occasioned county through respondents detriment, to act to their or to position its only partially to its detriment. At most dis charged legal obligation. payment legal obliga The partial of a payment full, discharge tion is not and does the debt. [Zinke v. Mo. Maccabees, l. c. S. W. 1.]
“Upon the facts act of relator caused Crawford respondents, agents, anything its to do the detriment of the agents. themselves, simply or to part payment There was of a debt the law.” which the owed under Bohl- of the circuit court is affirmed. Westhues and ing, GG., concur. PER foregoing opinion adopted CURIAM: The Cooley, C., Judges opinion
as the All of the court. concur. Savings Cor Farm & Missouri, Home & Loan Association Burgard poration, Appellant, W. Theiss, Geo. William (2d) Pfeifer. W. S. W. Two,
Division December 1937.* May Opinion Term, August 26, 1937; *NOTE:' filed at motion for filed; Term, rehearing September overruled motion December