Board of Com'rs of La Plata County v. Durnell

• Decision Date: 09 December 1901
• Citation: 66 P. 1073,17 Colo.App. 85
• Parties: BOARD OF COM'RS OF LA PLATA COUNTY v. DURNELL.
• Court: Colorado Court of Appeals

66 P. 1073

17 Colo.App. 85

BOARD OF COM'RS OF LA PLATA COUNTY v. DURNELL.

Court of Appeals of Colorado

December 9, 1901

Appeal from district court, La Plata county.

Action by J.R. Durnell against the board of county commissioners of La Plata county. From a judgment for plaintiff, defendant appeals. Affirmed.

N.C. Miller, for appellant.

W.A Reese and Reese McCloskey, for appellee.

WILSON P.J.

Plaintiff presented to defendant, the board of county commissioners of La Plata county, for allowance, a number of separate itemized bills or accounts for services claimed to have been rendered by him as county superintendent of schools. The bills were made out on printed blanks used for the purpose, and on the back of each was the following printed form: "The amount of $______ was allowed on the within account in full payment thereof, by order of the board of county commissioners on the _____ day of _____, 189_. Chairman." When the bills were acted upon by the board, it seems to have been the custom to fill out the proper blank space with the amount allowed together with the date, and this was signed by the chairman of the board. Some of plaintiff's accounts were allowed in full, some only in part, and some wholly disallowed. County warrants or orders for the amounts allowed were made out by the county clerk, and were received by the plaintiff, or by his assignee. Plaintiff then commenced this suit for the balance due on the accounts which had been only partially allowed and paid. The defense relied upon is that the warrants for the respective amounts were taken and accepted by plaintiff in full satisfaction of the respective claims. Judgment was for plaintiff.

The facts of this case are quite similar to those of Rio Grande Co. v. Hobkirk, 13 Colo.App. 180, 56 P. 993, and they are not at all such as to bring the case within the rule announced in Board v. Morgan, 28 Colo. 322, 65 P. 41. The defendant's plea was in the nature of accord and satisfaction, and to sustain it the burden was upon it to show, by competent evidence, every element necessary to constitute it. Rio Grande Co. v. Hobkirk, supra. In this it wholly failed. There was no proof that the plaintiff had any knowledge that the board, in the allowance of only a part of his claims at the time when presented, had prescribed, or intended to prescribe, as a condition, that such allowance was to be taken in full satisfaction of the claim. Nor were...