Chapman v. County Court Of Wayne County.

• Decision Date: 13 February 1886
• Citation: 27 W.Va. 496
• Parties: Chapman v. County Court of Wayne County.
• Court: West Virginia Supreme Court

27 W.Va. 496

Chapman

v.County Court of Wayne County.

Supreme Court of Appeals of West Virginia.

Submitted January 18, 1886.

Decided February 13, 1886.

1. No suit can be maintained against the county court of any county for the" recovery of any sum of money due from such county founded on contract except an order on the county treasury, until such claim or demand has been presented to and disallowed in whole or part by such county court, or until an itemized ac- count or statement thereof has been filed with the clerk of such court, and the court has neglected or refused to act thereon to the close of the second session of such court, next after it was so tiled with such clerk, or to the close ot the first session thereof, next after it was so presented to such court, (p. 501.)

2. If such a suit be brought against the county court of any county for the recovery of any such claim or demand, the declaration must substantially aver, that the same had been so presented to and disallowed In whole or in part by such court, or that such itemized account or statement thereof had been so tiled with the clerk of such court, and that said court had so neglected or refused to act thereon; and unless such averments substantially appear upon the face of the declaration, it will for that cause be demurrable, (p, 50l.)

3. In such a suit against the county court of Wayne county it was held upon demurrer, that the declaration contained substantially these averments, (p. 502.)

Sirnms Enslow for plaintiff in error.

No appearance for defendant in error.

Woods, Judge:

This was an action ot assumpsit brought in the circuit court ot Wayne county by William F. Chapman against the county court of Wayne county to recover the contract price for the making ot a public road.

Besides the common counts the declaration contained the following special count:

" And for this, that heretofore, to-wit, on August 10, 1880, the said defendant, by its commissioner, G. F. Ratlift, entered into a contract with this plaintiff for the building of a certain piece of road in said county by the plaintiff over what is known as the Blan kin ship Hill, for which work to be done according to the plans and specifications made known at the time of letting said contract to plaintiff by its said commissioner, said defendant agreed and promised said plaintiff to pay him the sum of $600.00 for said work. The plaintiff proceeded, continued and completed the building of said road according to plans and specifications aforesaid; that at the time of the completion of said road, the plaintiff notified the defendant that the work under such contract was completed, and asked that the same be examined and reported to the defendants; that the defendants, nor its commissioner for them, examined said work nor made a report upon the same when requested to do so by this plaintiff; that afterwards the defendant appointed a new commissioner, who, after frequent solicitations by this plaintiff, made an examination of said work, and upon his said report, the defendants paid to this plaintiff upon said contract the sum of $200.00, and refused to discharge the balance of their said debt to this plaintiff and ordered that certain changes be made in said road; said changes were not a part nor parcel of the contract with said defendants; that this plaintiff did make all and every of such changes ordered to be made by said defendant at a great and additional outlay of money and time: that when such additional work was completed, as ordered by defendant, this plaintiff requested said defendants to receive said work and pay him therefor. Said defendants did, on November 10, 1881, pay to said plaintiff upon said contract the further sum of $200.00, but failed and refused to pay the balance, to-wit, the sum of $200.00 due him upon said contract; that this plaintiff has at divers times sought and requested the payment of said debt due from defendant on said contract; that the defendant refuses and wholly fails to pay the same; and in consideration thereof, then and there promised to pay to him (to said plaintiff) the several moneys aforesaid upon demand, yet said defendant has never paid any of said moneys but wholly neglect so to do, to the damage of the plaintiff in the sum of $10,000.00. And therefore he sues," &c.

The defendant entered a demurrer to the declaration and to each count thereof, which was overruled, and then pleaded non-assumpsit and payment, with specification of sets-off, on which issues were joined which were afterwards tried by a jury, who found a verdict in favor of the plaintiff for $220.00 damages, which the defendant moved to set aside. This motion the court also overruled, and entered judgment in favor of the plaintiff for the amount of the verdict and the costs.

The cause has been brought to this Court upon a writ of error, by the defendant in the court below.

The only error assingned is that the circuit court improperly overruled the demurrer to the plaintiffs declara- Hon. The grounds relied on to sustain the demurrer, are that the declaration does not in any of its counts aver that the plaintiffs claim or demand had been presented to said county court before he brought his action and that the same had been disallowed in whole or in part by it, as provided in sec. 41 of ch. 5 of the Acts of 1881, and that it does not aver that the plaintiff's claim or demand had been filed with the clerk of that court as provided in sec. 40 and 41 of said chapter. Many authorities have been cited in support of these propositions, nearly all of which have been rendered upon the construction of statutes very similar, and in some cases, identical with secs. 40 and 41 of ch. 5, above cited. In all the authorities cited the courts announce their conclusions almost in the words of the statute under consideration, being unable to find any language more exact or comprehensive than the terms used in the statutes. While all concur in the opinion that under the several statutes ot their respective States, no action can be brought against a county, for any claim or demand, until the same has first been presented to the proper authorities for payments, and this presentation is a condition precedent, to the bringing of the suit, and in...