Barrett v. Cnty. Court of Schuyler Cnty.

• Decision Date: 31 March 1869
• Citation: 44 Mo. 197
• Parties: ARTHUR B. BARRETT, Relator, v. THE COUNTY COURT OF SCHUYLER COUNTY, Respondent.
• Court: Missouri Supreme Court

44 Mo. 197

ARTHUR B. BARRETT, Relator,

v.THE COUNTY COURT OF SCHUYLER COUNTY, Respondent.

Supreme Court of Missouri.

March Term, 1869.

Petition for mandamus.

Hunton, Moss & Sherzer, for relator.

I. The bonds sued on are negotiable. (2 Pars. on Bills and Notes, 34 and notes; Craig v. City of Vicksburg, 31 Miss. 216, 221, 247; 1 Wall. 95; 2 Wall. 110-122.)

II. Having issued such securities, it is too late now, even as against the railroad company, much more a “ bona fide holder thereof,” for the county to set up any defense based upon conditions precedent to subscription, or conditions in subscription; and the county, by issue of its bonds, is estopped from denying that power was properly executed. (33 Mo. 440-450; 36 Mo. 294; 3 Wall. 654; 4 Wall. 271, 274-5; 1 Wall. 83, 175, 291, 384; 1 Black, 386; 2 Black, 722-731; 21 How. 545; 43 Penn. St. 401-2; 43 Penn. 391.)

III. The act of said county in voting upon said subscription for over twelve years--from 1854 to 1867--is a complete waiver of all conditions. (36 Mo. 294; Const. of Mo.; Gen. Stat. 1865, p. 36, § 3.)

IV. The bonds were due and in hands of bona fide holder before any change in ““present survey” as understood by the court--they were due in 1860. If there was an equity against the bonds, it arose after the paper was transferred, and after its maturity.

J. G. Blair, for respondent.

I. The bonds are not negotiable under the law in force at their issue. (R. C. 1855, p. 295, § 15; id. 320, § 2; id. 322, § 3.)

II. There being no election held, neither the County Court nor their agent had any power or authority in law to make the subscription. (Sess. Acts 1853, p. 135, § 29; R. C. 1855, p. 427, § 30; Leavenworth and Des Moines R.R. Co. v. Platte County, 42 Mo. 171.)

CURRIER, Judge, delivered the opinion of the court.

The agreed statement of facts filed in this cause shows that the county of Schuyler, in the month of December, 1854, or the following January, acting through its duly appointed agent, subscribed for five hundred shares of the capital stock of the North Missouri Railroad Company, amounting to $50,000. This subscription was delivered to the officers of the company, and duly placed on file. It was subject to the following conditions, recited in the order of the County Court authorizing the subscription to be made, to-wit: “Provided said railroad is located on or near the present survey, and in compliance with the present charter, through Schuyler county, as has been surveyed.” It further appears that on the 7th day of November, 1859, the Schuyler County Court, as a first payment on the stock thus subscribed, issued and delivered county bonds to the amount of $15,000, which were purchased by the relator before their maturity, as the evidence shows. The bonds were in the following form, sealed and authenticated as the form indicates:

“$1,000.

No. _____

$1,000.

The County of Schuyler, in the State of Missouri, will pay to the North Missouri Railroad Company, or bearer, at their office in St. Louis, on the first day of March, 1860, one thousand dollars.

"By order of the County Court. Given at Lancaster, this 7th day of November, 1859.

CHARLES HALE, P. J. S. C. Court.

Attest: J. B. ALVERSON, Clerk.”

[County Court seal.]

These bonds were duly presented for payment at maturity, and payment thereof refused, and no part of them has since been paid. The petition, among other things, recites the foregoing facts, and prays that a peremptory writ of mandamus may issue requiring the Schuyler County Court to assess and levy a tax for the payment of said bonds, with the interest thereon. The issue of the writ is resisted on two general grounds, namely: 1st. That the bonds are non-negotiable instruments, and therefore subject to all equities existing between the railroad company and Schuyler county; and, 2d. That the condition upon which the stock subscription was made has not been complied with in two particulars--first, as regards the location of the road, and, secondly, as to the time of its completion to a certain point, as provided in the charter. The first proposition is founded upon the statute in relation to bonds, notes, and accounts. (R. C. 1855, p. 320, §§ 2, 3.) The bonds in suit, it is true, do not contain the words “value received, negotiable and payable with out defalcation,” and therefore fall within the letter of the provisions referred to; but that they fall within the aim and purpose of these provisions is questionable. In these enactments, the Legislature had in view classes of paper called into use for entirely different objects than that contemplated by the Schuyler county bonds--paper that is not usually employed in banking and commercial operations, and not adapted to or intended for such uses. But these bonds were issued and put in circulation evidently as commercial securities-- securities that the railroad company might sell and use in raising funds to defray the cost, in part, of constructing their railroad. They purport, on the face of them, to be issued by the order of the Schuyler County Court, under the common seal, are payable to bearer at a future time, and import a consideration, although that consideration is not recited in the body of the instrument. Here are the ordinary elements of negotiability. In Moran v. Miami County, 2 Black, 722, the Supreme Court of the United States held that bonds, not essentially unlike those in question, “were commercial securities, though not in the accustomed forms of promissory notes and bills of exchange; that the parties intended them...