Buchanan v. County of Ralls
| Decision Date | 04 June 1920 |
| Parties | ESTELLA BUCHANAN v. COUNTY OF RALLS, Appellant |
| Court | Missouri Supreme Court |
Appeal from Ralls Circuit Court. -- Hon. W. T. Ragland, Judge.
Reversed and remanded.
Thos E. Allison, Charles E. Rendlen and Harry Carstarphen for appellant.
(1) The court erred in the exclusion of this evidence. (2) The court erred in giving plaintiff's peremptory instruction to find a verdict for plaintiff. Every other officer of the county occupied a room in the court house, sharing same with another officer, to the convenience of the public and without prejudice to the rights of the public and the due discharge of the duties of such officers. Plaintiff alone must get a separate room, though even a separate room was offered her if she wanted to be apart from the other officers, differing from her predecessors and the custom in the county, together with light, heat and janitor service, and this room so offered only to be shared at long intervals for a few days with juries. All this is disregarded and notwithstanding it all is true, the plaintiff must recover a verdict under the above instruction. Beauchamp v. Pike Co., 251 Mo 529; Cleary v. Eddy Co., 51 N.W. 586. (3) The refusal of defendant's Instruction 2 was error. It tendered a correct proposition of law, and was pleaded as a defense in defendant's answer. Sec. 2778, R. S. 1909. Nor can defendant be held liable upon an implied contract where this statute, Sec. 2778, R. S. 1909, is not complied with. Perkins v. School Dist., 99 Mo.App. 483; Inhabitants v. Rumsey Mfg. Co., 39 Mo.App. 264; Motley v. Pike Co., 233 Mo. 46.
D. H Eby and Ben E. Hulse for respondent.
(1) There was no error committed in excluding testimony. The matters proffered and excluded were palpably opinions and conclusions, and not matters of fact. (2) Sec. 2778, R. S. 1909, relied upon by the appellant, has no application to the case at bar. The suit is not bottomed upon any contract falling within the purview of that section, but rests upon the following statutes and upon public policy: Secs. 3664, 3692, 3755, R. S. 1909; Laws 1917, p. 223; Ewing v. Vernon County, 216 Mo. 693. (3) Appellant unsoundly contends that, conceding the failure and refusal of the county court to peform its duty in the premises and the improbability of the willingness of that court to enter into any written contract with respondent touching the matters now sued for, the only remedy available to her was to demand such contract and, failing to obtain it, to adopt the extraordinary remedy of mandamus. Of whom could she have demanded such contract? "Her only sensible course was to do what she did, viz., avoid an unseemly wrangle, pay it out of her own pocket and trust to the courts and the law to reimburse her." Ewing v. Vernon County, 216 Mo. 691. (4) The grand jury room was inherently lacking in availability. Reasons of public policy dictate that the circuit court shall not lack for a jury room. The office rooms in the courthouse were described by the witnesses, and the several uses to which they were put were fully stated, and as so described they are the physical facts in the case about which there is no conflict. They point to but one conclusion, to-wit, that there was no suitable room in the courthouse for occupancy by respondent. (6) The county court may have seen no impropriety in compelling two or more officials to occupy jointly a single room. They may have thought it perfectly proper to crowd as many into one room as possible. But neither their opinions nor the fact that some of the officials acquiesced in the disposition so made of them affect the question of public policy. It is the tendency of the act in question that is to be considered. Vital v. Girard, 2 How. (U.S.) 197; People v. Hawkins, 42 L. R. A. 490; Carroll v. Mo. Pac. Ry. Co., 88 Mo. 245. (7) There was no legal defence pleaded or proved. Carroll v. Mo. Pac. Ry. Co., 88 Mo. 244; Ragan v. Railroad, 144 Mo. 623; Duvant v. Cooperage Co., 188 Mo.App. 93.
This is a suit on the part of Estella Buchanan against Ralls County, for certain expenses paid by her while she was treasurer of the defendant county. Plaintiff had judgment below and the county duly appeals. Plaintiff alleged, in substance, that she was the duly elected, qualified and acting treasurer of Ralls County, from the first day of January, 1909, until the first day of January, 1917; that as such official she was by law required to keep an office at the county seat of said county and to attend the same during the usual business hours, there to receive and disburse the funds of the county, and that it was also her statutory duty to keep the books, records and papers pertaining to her office; that during that time it was defendant's duty to provide her with a suitable officeroom properly equipped, lighted and maintained, but that it failed to do so; that as a result of such failure she was compelled to supply and did supply the office and defray the expenses of lights and janitor service therefor, and pay therefor out of her own funds; that she had expended the sum of $ 720 in so doing; that that sum was the reasonable value thereof, and that payment of said sum had been demanded and refused.
By its answer defendant admitted plaintiff's official position; followed this admission with a general denial, and then averred, in substance, that during the period aforesaid it maintained a county courthouse for the use of the county officials at the county seat; wherein it supplied the things which plaintiff claimed to have supplied, but it appears from the answer that it was necessary, if plaintiff kept her office in the courthouse, that she should occupy one room jointly with the county clerk, unless she chose to occupy a room on the second floor, which, as the evidence showed, was used by the grand jury and petit jury when court was in session. Defendant further averred that plaintiff maintained a separate office elsewhere than in the courthouse for her own business convenience; that during her term of office she made periodical settlements with the County Court of Ralls County, and upon said settlements being made she was duly paid all that was due her, and all that she then demanded, and in consequence was estopped to claim more; that so much of her claim as accrued prior to five years next before the filing of her petition was barred by the Statute of Limitations, and that no contract in writing for said expenses was ever made by defendant. The reply was a general denial.
The evidence for plaintiff tended to show that she maintained a separate office in the central portion of New London, the county seat of Ralls County; that rent, lights and janitor service cost $ 7.50 per month, which was a reasonable charge that the county clerk's office was too small for joint occupancy; that the only unoccupied room in the courthouse was the jury room; that a short time before her term expired she presented her demand to the county court and payment was refused. A demurrer to the evidence was overruled. Defendant's evidence tended to show that the county court offered to fit up the jury room for plaintiff's use when court was not in session; that some former treasurers had occupied the county clerk's office jointly with him, and that others, at their own request,...
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