Board of Com'rs of Rio Grande County v. Hobkirk

• Decision Date: 10 April 1899
• Citation: 13 Colo.App. 180,56 P. 993
• Parties: BOARD OF COM'RS OF RIO GRANDE COUNTY v. HOBKIRK.
• Court: Colorado Court of Appeals

56 P. 993

13 Colo.App. 180

BOARD OF COM'RS OF RIO GRANDE COUNTY v. HOBKIRK.

Court of Appeals of Colorado

April 10, 1899

Appeal from district court, Rio Grande county.

Action by Percy Hobkirk against the board of commissioners of Rio Grande county. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Charles M. Corlett, for appellant.

Geo. P Wilson, for appellee.

BISSELL J.

Hobkirk the sheriff of Rio Grande county, sued the county commissioners for $38 for services performed in taking two prisoners, White and Trujillo, to the reformatory. The bill as presented to the board, was for $169.40, and was verified. The board proceeded to audit it, and allowed him $135.25 deducting the amount of $37.50, for which the sheriff ultimately had judgment in this suit. The only evidence of the action of the board appearing in the record was an indorsement on the back of the account that "the amount of $135.25 was allowed on the within account in full payment thereof, by order of the board of commissioners, on the 19th day of October, 1896." To the suit the county pleaded acceptance of this amount in full settlement, and that the action of the parties amounted to an accord and satisfaction. When the case came to trial the sheriff testified to the amount of his fees and disbursements, and it transpired that the two prisoners were taken at different times. The action of the board would appear to rest on this circumstance, and, as they were apparently of the opinion the sheriff ought to have taken them both at one time, to save expenses, they proceeded to cut his bill down. The sheriff testified that he did it according to his best judgment, and did not make the two trips for the purpose of accumulating costs, fees, or expenses, and rested. The indorsement on the back of the bill was conceded by the replication, but therein the sheriff denied that he accepted it in satisfaction, and denied that he had any notice of the indorsement, although he knew part of the bill had been allowed. He further averred that on the advice of the county attorney he accepted the warrant, being advised this would not bar him from the collection of the remainder of his bill. There was no proof in support of the plea of accord and satisfaction, other than the production of the bill with its indorsement. There was no proof to the point that the deduction was called to his attention, or that he was tendered the warrant with the agreement and understanding that he should accept it in full payment; nor was any action proven, on the part of either the sheriff or the board, other than this action and the indorsement which had been placed on the account. The county offered some testimony as to the reputation of these prisoners for peace, and whether they were vicious or otherwise, which was rejected. On this record judgment was directed by the court, which followed in the sum named, and the county prosecutes this appeal.

We do not conceive that the appellant presents any proposition on which the judgment can be disturbed. We do not enter the disputed territory as to whether the claim is for liquidated or unliquidated damages, and whether or not it could be made the subject of a plea of accord and satisfaction. The plea is an affirmative one. To sustain it is the burden of the pleader. Whenever a cause of action is conceded, and it is sustained by proof, and the defendant would escape liability on the theory of an accord he must show a satisfaction between the parties which will sustain the plea. It is always the law that where the sum in controversy is disputed, and a party offers a fixed sum in satisfaction, and attaches to the offer the condition that, if taken at all, it must be received in full settlement, it will operate as an accord, and the receipt of the money will be a satisfaction. Proof of the condition, and the acceptance of the money in satisfaction, must be clear. This is a familiar rule, which has been often expressed, and was plainly put in Berdell v. Bissell, 6 Colo. 162. ...