64 Cal. 65 | Cal. | 1883
The plaintiff was clerk and ex-offido auditor of Plumas County, and as such entitled to certain fees as clerk, and t8 certain fees and percentages as auditor, Avhich fees and percentages the tax collector, during a certain specific period, paid over to the county. The plaintiff during the same period paid the fees received by him as county clerk into the county treasury. During the same period he dreAV from the treasury one hundred and tAventy-fivc dollars per month, Avhich Avas more than the fees received and paid in by him as clerk, but less than the aggregate of the fees and percentages to which he was entitled as clerk and auditor. His fees and percentages
The payment by the clerk of the fees received by him as clerk into the county treasury, and drawing therefrom one hundred and twenty-five dollars per month, was wholly unauthorized ■ by the law then in force. But no particular harm could result therefrom, because the amount which he drew, during the time the act above referred to was supposed to be valid, was less than the fees paid in by him and the fees and percentages to which he was entitled, paid in by the tax collector. Crediting the county with the amount drawn out during the aforesaid period, and debiting it with the sums paid in, to which the plaintiff was entitled, there is a balance in his favor of $1,193.69, for the recovery of which this action is brought. The claim is not an inequitable one, and the allowance of it will simply place the parties where they would be if the law had been strictly complied with. One of the grounds upon which the.claim is resisted is that the payment by the plaintiff of his fees into the treasury was voluntary. But he only paid in the fees he had received as clerk, and he has drawn an amount considerably in excess of the sum so paid. In other words, the county has voluntarily paid him more than he paid the county, and he very properly credits the county with the excess in his account against the county for fees and percentages to which he was entitled as auditor, and which were turned over to the county by the tax collector. That is, he in effect says to the county: “I am entitled for fees and percentages as auditor from the first Monday of March, 1880, to the 31st day of March, 1882, to the sum of $2,228.53, of which I have received $1,034.84, leaving a balance due me of $1,193.69.”
Unless the receipt of a part of what was due him constitutes a waiver of his right to recover the balance, we cannot conceive upon what ground such right can be defeated, and nothing is better settled than that the receipt or acceptance of a part of a debt is not a satisfaction of the whole, nor a waiver of the right
Judgment reversed and cause remanded, with directions to the court below to overrule the demurrer to the complaint, with leave to the defendant to answer within ten days after receiving notice thereof.
Thornton, J., and Myricic, J., concurred.
Hearing in Bank denied.
