City of St. Louis v. Foster

• Citation: 24 Mo. 141
• Parties: CITY OF ST. LOUIS, Respondent, v. FOSTER AND WEST, Appellants.
• Decision Date: 31 October 1856
• Court: Missouri Supreme Court

24 Mo. 141

CITY OF ST. LOUIS, Respondent,

v.FOSTER AND WEST, Appellants.

Supreme Court of Missouri.

October Term, 1856.

1. A superintendent of waterworks in the city of St. Louis, appointed and acting under the city ordinance No. 2288 (Rev. Ord. 1850, p. 160), received from the city register blank water licenses, with the respective amounts stated therein, to be issued by him to individuals from whom it was his duty to collect, and pay over to the city treasurer, the sums called for in such licenses; held, that prima facie he became chargeable with the whole amount called for by the blank licenses so received by him, although the city auditor, not having received from the city register one of the duplicate receipts which it was the duty of the register to have required of the superintendent for the blank licenses delivered, had not charged said licenses to the superintendent as required by the above mentioned ordinance.

2. In an action on an official bond against the principal and sureties, the admissions of the principal, made after the expiration of his term of office, are inadmissible in evidence against the sureties.

Appeal from St. Louis Court of Common Pleas.

Foster, one of the defendants in this suit, was superintendent of waterworks of the city of St. Louis for two successive terms of one year each, ending the first Monday of June, 1853, and as such executed the two bonds upon which this suit is brought, with West as his security in each bond. The petition contained separate counts upon each bond. It appeared in evidence that during these two terms of office Foster, as superintendent of water works, received from the city register blank water licenses to a large amount; that a portion of these blank licenses were returned to the city register; that the amount paid by said Foster to the city treasurer, as the amount collected by him upon the blank licenses filled up and issued by him to individuals, left a portion of the blank licenses received by him from the register unaccounted for. There was no evidence showing that any of these blank licenses unaccounted for by Foster were ever issued by him to individuals, or by any one authorized by him; nor did it appear that he had ever received any money upon said blank license The ordinance of the city (see Rev. Ordinances, Art. 6, Sec. 2, p. 168) made it the duty of the superintendent of waterworks, among other things: ““ Fourth, to issue licenses to individuals for water from the waterworks, and collect the charges therefor, and to pay to the city treasurer, on every Saturday, all moneys received by him for water licenses during the previous week. Fifth, to report to the city auditor, under oath, every three months, all licenses issued by him, and the amounts received therefor, and the payments made by him into the city treasury; and, at the same time, produce to the auditor all blank licenses then in his hands, and settle the account for the quarter.”

Article 7 of said ordinance contained the following provisions: “Sec. 1. Blank water licenses shall be furnished by the city register to the superintendent of the waterworks as often as he may request, to be issued as hereinafter provided. Sec. 2. The register shall keep a register of all licenses so furnished, and shall take duplicate receipts therefor, one of which he shall immediately deliver to the city auditor, to be charged to the superintendent of the waterworks.”

No receipts whatever were taken by the city register at the time the blank licenses were delivered to the superintendent; consequently none were delivered to the auditor by the register, as required by the above cited ordinance. As no receipts for the blank licenses were delivered to the auditor, he did not charge the superintendent therewith. The superintendent never made a quarterly report to the auditor, under oath, as required by the ordinance.

The cause was tried by the court sitting as a jury, and the court having found on one of the counts of the petition a balance in favor of the plaintiff, and upon the other count a balance in favor of the defendant, these sums were set off against each other, according to the stipulation of the parties, and a judgment rendered against the defendants, Foster and West, for the sum of $2,753.06Krum & Harding and Glover & Richardson, for appellants.

I. The court should have reviewed the finding, for it is assumed that Foster received the number of licenses charged against him in the register; the only evidence that he delivered any of them to applicants and received the water rates for those so issued, was given by his collectors, and, according to their testimony, all the money that he received for licenses issued was fully accounted for to the city. The licenses themselves were of no value, or at least but nominal, until they were issued, and the burden of proving that they were issued rested on the plaintiff.

II. The case made by the averments contained in the plaintiff's petition is for money had and received to the use of the city--that is to say, the averments in the petition are distinct to the effect that Foster issued the number of licenses charged against him (except what he returned), and that he received the rates or money for them. There is a complete failure of proof on both these points.

III. The court finds the fact that the plaintiff failed to prove that Foster or his collectors ever collected or received any moneys for licenses which have not been accounted for before this suit. The very gist of this action is that Foster collected money for licenses and failed to...