Chouteau v. Rowse

• Decision Date: 31 March 1874
• Parties: CHARLES P. CHOUTEAU, et al., Appellants, v. EDWARD S. ROWSE, Respondent.
• Court: Missouri Supreme Court

56 Mo. 65

CHARLES P. CHOUTEAU, et al., Appellants,

v.EDWARD S. ROWSE, Respondent.

Supreme Court of Missouri.

March Term, 1874.

Appeal from St. Louis Circuit Court.

A. J. P. Garesche, for Appellants.

Harding & Crane, for Respondent.

ADAMS, Judge, delivered the opinion of the court.

This was an action to recover from defendant ten thousand dollars which had been paid to him by the plaintiffs in part payment of taxes due on lands in St. Louis county, belonging to plaintiffs. The petition alleges that the defendant was the county collector of taxes for St. Louis county, and that the plaintiffs paid him ten thousand dollars in part payment of their taxes which had been assessed against them on their lands in St. Louis county, and that subsequently, they tendered the defendant as collector, the balance of the taxes due on their lands which he refused to accept; that the defendant as collector, afterwards returned said taxes wholly delinquent without any credit for the amount paid by them, and that they were compelled to pay the whole amount of the taxes to Robert Charles the successor of defendant in office; that the defendant refuses to pay to the plaintiffs the said ten thousand dollars, or any part thereof, although duly demanded of him by plaintiffs.

The answer of defendant was a denial of the allegations of the petition.

On the trial of the case, the only evidence offered or given by plaintiffs was as follows: “That the plaintiffs constitute the firm of Charles P. Chouteau & Co.; that on the 30th of Nov., 1867, they delivered to defendant, who was the collector of taxes for the county of St. Louis, in part payment of the taxes by these plaintiffs to be paid, the sum of ten thousand dollars, by the check of plaintiffs on the banking house of Tesson, Son & Co., which sum defendant then and there accepted, in part payment of such taxes; that at the time said check was drawn and ever since, there has been in the hands of said Tesson, Son, & Co., more than sufficient funds, lawful money of the United States, to the credit of plaintiffs out of which to meet the payment thereof; that had said check been duly presented it would have been paid in such lawful money of the United States; but it was not so presented and never has been to this day, and that to this day said check remains in possession of defendant; that had said check been presented with due diligence, it would have been paid in lawful money of the United States, but was withheld from presentation by defendant and subsequently, and about a month later, the firm of Tesson, Son & Co., failed and have ever since been wholly insolvent.”

“Upon the offer of this proof, defendant for the purpose of this trial admitted it as if made and given in evidence, and then demurred to the evidence, by asking of the court that upon the proof of these facts plaintiffs were not entitled to recover.”

The court sustained the demurrer and thereupon the plaintiffs took a...