16 S.W. 684 (Mo. 1891), Knox County v. Goggin

Citation:16 S.W. 684, 105 Mo. 182
Opinion Judge:Black, J.
Party Name:Knox County, Appellant, v. Goggin, Appellant; Connecticut Mutual Life Insurance Company, Respondent
Attorney:Charles D. Stewart and William Clancy for appellant, Knox county. O. D. Jones for appellant Goggin. Lee & Ellis for respondent.
Case Date:June 15, 1891
Court:Supreme Court of Missouri
 
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Page 684

16 S.W. 684 (Mo. 1891)

105 Mo. 182

Knox County, Appellant,

v.

Goggin, Appellant; Connecticut Mutual Life Insurance Company, Respondent

Supreme Court of Missouri, First Division

June 15, 1891

Appeal from Knox Circuit Court. -- Hon. B. E. Turner, Judge.

Reversed and remanded.

Charles D. Stewart and William Clancy for appellant, Knox county.

(1) Entry of satisfaction of the school-fund mortgage by the deputy county clerk was a nullity. R. S. 1879, sec. 7114; State ex rel. v. Moeller, 48 Mo. 331; St. Louis Co. v. Bonner, 72 Mo. 389; State v. Hickman, 84 Mo. 81; St. Louis Co. v. Heath, 8 Mo.App. 104. It was no part of the duty of the deputy county clerk to collect the school fund from Goggin. See authorities, supra. (2) Where the officers of a private corporation are unfaithful to their trust, a court of equity, upon a proper showing, will allow stockholders to file a bill to prevent an intended fraud on them, or to set aside a fraud already consummated. Dodge v. Woolsey, 18 How. 333; Memphis City v. Dean, 8 Wall. 64; Bronson v. Railroad, 2 Wall. 283; Hawes v. Oakland, 104 U.S. 450. The county is not liable for the alleged laches of the deputy county clerk in failing to account for the money said to have been received from the agent of the insurance company. Marion Co. v. Moffett, 15 Mo. 616; Parks v. State, 7 Mo. 194; Ray Co. v. Bentley, 49 Mo. 236; Railroad v. Smith, 9 Wallace, 95; Norton v. Township, 110 U.S. 608; Kelley v. Milan, 127 U.S. 139.

O. D. Jones for appellant Goggin.

(1) The petition does not state facts sufficient to entitle plaintiff to any relief. It charges a combination to commit a fraud, but no wrongful act. Alexander v. Relfe, 74 Mo. 495. Relief can be granted only on the grounds stated in the petition. Cox v. Esteb, 68 Mo. 110. (2) Brown was the insurance company's agent, even if he was also appellant's. (3) Brown did not "discharge the prior lien" out of the "proceeds of the loan," or out of his money. The company gives this "contract" in evidence against appellant, and that, with the evidence that it, nor Brown, has complied with one of its material conditions -- has violated all of them. But, in the face of it all, it is made, in the opinion of the court, the foundation to the decree to compel appellant to pay the debt to both plaintiff and defendant company. As to the effort of Brown to pay the school-fund debt out of his own means he acted as a volunteer; he was not under contract to do it, or authorized to do it. If the money paid Bunce is lost, it is his money. If the company gives its contract with Goggin, making him appellant's agent, in evidence, and claims under it, it must take notice of all its terms and conditions. Hagerman v. Sutton, 91 Mo. 520, 533. Brown was a special agent to "procure a loan;" he did not agree to make one to, nor Goggin to borrow of, him. If Brown's payments to Bunce did not discharge the mortgage and anyone owed the money to him it was Bunce; it was not appellant. He did not contract to become Brown's debtor on mortgage in any event. A man has the right to choose whose debtor he will be. Allen's Adm'r v. College, 41 Mo. 302. "Authority to perform or carry out a contract does not imply power to change it; nor does a power to sue and execute a release imply power (to agent) to release without payment." 1 American and English Ency., pp. 367-372; Wheeler v. Givan, 65 Mo. 89; Stewart v. Wood, 63 Mo. 252; Burkwalter v. Craig, 55 Mo. 71; Greenwood v. Burns, 50 Mo. 52.

Lee & Ellis for respondent.

(1) The county clerk was the duly authorized agent of the county to acknowledge satisfaction of mortgages on the margin of the record. Corpenny v. Sedalia, 67 Mo. 91; Kiley v. Forsee, 57 Mo. 390; Dillon, Mun. Corp. [4 Ed.] p. 213; Davies v. Mayor, 93 N.Y. 254; Boggs v. Caldwell, 28 Mo. 588; R. S. 1879, secs. 5357, 5387, 5389, 7105, 7114; Sheidley v. Lynch, 95 Mo. 487. (2) The...

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