Cnty. of Johnson v. Wood

• Citation: 84 Mo. 489
• Parties: THE COUNTY OF JOHNSON, Appellant, v. WOOD, Administrator.
• Decision Date: 31 October 1884
• Court: United States State Supreme Court of Missouri

84 Mo. 489

THE COUNTY OF JOHNSON, Appellant,

v.WOOD, Administrator.

Supreme Court of Missouri.

October Term, 1884.

Appeal from Johnson Circuit Court.--HON. N. M. GIVAN, Judge.

REVERSED.

The following is the contract of August 12, 1870, mentioned in the opinion:

“Now, at this day, comes A. W. Ridings, and presents to the court here a modified contract between the county of Johnson and the said A. W. Ridings, whereupon it is ordered by the court that the presiding justice of this court sign said contract, and that the clerk of this court attest and affix seal of this court thereto.

Which said contract is in words and figures following, to-wit:

Whereas the county of Johnson, in the state of Missouri, on the 13th day of September, 1851, subscribed to the capital stock of the Pacific railroad, the sum of $100,000, being equal to one thousand shares of the capital stock of said Pacific railroad, and has fully paid the sum of $53,000, being the payment of five hundred and thirty shares of the said capital stock, and the said county of Johnson, on or about the 17th day of December, 1856, entered into and made a certain contract and agreement with the said Pacific railroad for the issue of certain bonds for and on account of said subscription with certain terms, conditions and limitations therein contained and expressed; and the said county of Johnson, in pursuance of the said agreement, did afterwards, on the first day of January, 1857, issue and deliver to the said Pacific railroad, certain bonds for and on account of said subscription, to-wit: Forty-seven bonds, all dated January 1st, 1857, and each for $1,000, and bearing seven per cent. interest from date. Thirteen of said bonds being payable nine years after date, and numbered from eighty-eight to one hundred, both inclusive; thirteen of said bonds being payable eight years after date, and numbered from sixty-eight to eighty, both inclusive; and twelve of said bonds being payable seven years after date and numbered from forty-eight to fifty, and then on to sixty, inclusive; and the remaining nine bonds being payable six years after date, and numbered respectively thirty-three, thirty-four, thirty-five, thirty-six, thirty-seven, thirty-eight, thirty-nine, forty, and forty-nine. The interest on said first named thirteen bonds having been paid to July the first, 1857 (1859?), and no interest having been paid on the remaining thirty-four bonds, and said bonds are equal to four hundred and seventy shares of the capital stock of the said Pacific railroad, and now held by said Pacific railroad, and now wholly unpaid as to all the principal and all the interest on said thirty-four bonds, and on said thirteen bonds, since July first, 1859, and said Pacific railroad claims that the county of Johnson is now liable to pay the whole principal and interest of said bonds, now amounting to about $88,500 in greenbacks, and if payable in gold then the said last named amount in gold; and said county of Johnson claims that the said county is not liable to said Pacific railroad to pay said bonds, or any part of them, or any interest.

And, whereas, Cruce, Colbern & Co., and William E. Borthick have become the purchasers of certain tax receipts issued by the county of Johnson, and have sued out writs of mandamus against the county court of said county of Johnson to compel said county court for and on behalf of said county of Johnson to issue to them shares of stock in the capital stock of said Pacific railroad, equal to the amount of said tax receipts held by them, and to be a part of the said $100,000 subscription by the said county, and in their application for said writs of mandamus, claim that the $100,000, as subscribed by the said county of Johnson, of right belongs to the holders of tax receipts paid on the same, and said actions are now pending and undetermined, in the Johnson court of common pleas for Johnson county, Missouri. And, whereas, the county of Johnson desires to sell and dispose of all said stock as subscribed to said Pacific railroad, and to be released and discharged from all liability whatever, for, and on account of said forty-seven bonds, or any part, or any interest, and from said actions of said Cruce, Colbern & Co., and from said Borthick, and from any and all liability for and by reason, or on account of any and all writs, orders, judgments or decrees which may be issued or entered in said actions in said county, or any other court.

And, whereas, the county court of said county of Johnson, for and on behalf of said county, has been attempting to arrange and settle said matters of difference with said Pacific railroad in reference to said forty-seven bonds, but has thus far wholly failed to make any satisfactory arrangements whatever, in relation to said bonds, and a resort to the courts of law would be very expensive to said county, and incur much expense, and said county of Johnson will be subjected to heavy expense in defending said petitions for said writs of mandamus, and has for some time past been negotiating for a sale of said stock, and the county of Johnson and A. W. Ridings have agreed upon the terms of sale of said stock. And the said county of Johnson sells, assigns and transfers to A. W. Ridings the said one thousand shares of stock in the capital stock of the Pacific railroad at the price of $77,000, and agrees to receive and accept of said forty-seven bonds in payment of $47,000 of said sum. and to give A. W. Ridings sixty days from this date to deliver to the said county of Johnson said forty-seven bonds, and to pay $27,000; and the balance of $3,000 is to be paid in cash, and if said Ridings fails in his agreement, then said $3,000 is forfeited to the county, and accepted by the county of Johnson as the full measure of her damage for all breach and failures of said Ridings, and in consideration of said sale and agreement of said county of Johnson, said Ridings agrees to purchase from said county the said 1000 shares of stock in said Pacific railroad, and to release and discharge said county from all liability whatever for, or on account of, said forty-seven bonds, and every part and all interest, and from all liability whatever on account, or by reason of said action of Cruce, Colbern & Co., or of said Borthick, or from any and all writs, orders, decrees and judgments in said actions, and to pay $3,000 cash, and to deliver up to said county the said forty-seven bonds, and to pay to said county said $27,000 within sixty days, and to hold and indemnify said county from all loss or liability whatever, by reason of said actions of Cruce, Colbern & Co., and said Borthick.

TABULAR OR GRAPHIC MATERIAL SET AT THIS POINT IS NOT DISPLAYABLE TABLE

Now, therefore, this agreement made and entered into this 17th day of May, 1870, by and between the county of Johnson, in the state of Missouri, party of the first part, and A. W. Ridings, party of the second part, witnesseth: That it is mutually agreed that the foregoing recitals shall be and hereby are made a part of this agreement, and the county of Johnson does hereby sell, assign, transfer and set over unto said A. W. Ridings, his executors, administrators, and assigns, the said one thousand shares of the said county of Johnson in the capital stock of said Pacific railroad, including the five hundred and thirty shares paid for in full, and also the four hundred and seventy shares of stock represented by said forty-seven bonds now held by said Pacific railroad, and does hereby authorize, empower and direct the treasurer of said Pacific railroad for, and on behalf of said county of Johnson, to transfer on the books of said company, to A. W. Ridings, the said one thousand shares so subscribed for by said county of Johnson, and to transfer the said five hundred and thirty shares of said stock separately to said A. W. Ridings, and to dispose of said four hundred and seventy shares in any manner which may be agreed upon by said Pacific railroad, and the said A. W. Ridings, as the agent for, and on behalf of the county of Johnson, under his appointment, discretionary powers this day made and given to him as the agent for the county of Johnson, for and in consideration of the agreements and promises of said Ridings, as hereinafter named, and in consideration of $77,000 paid and to be paid by said Ridings, as follows: $3,000 cash in hand, the receipt of which is hereby acknowledged by said county of Johnson, and $27,000 in money to be paid in sixty days from this date, and to receive and receipt from said Ridings said forty-seven bonds with unpaid interest coupons thereon, in full payment and discharge of the $47,000 remaining of said purchase money; and the said A. W. Ridings hereby pays to the said county the said $3,000 in cash, and if the said Ridings fails to perform his agreement as hereinafter named, the said $3,000 is to be retained by said county absolutely as the full measure of all damages, and this agreement to be null and void; and said A. W. Ridings further agrees to pay the said county of Johnson said $27,000, and to cause to be cancelled and delivered to said county the forty-seven bonds, with all the unpaid interest coupons thereon within sixty days from this date, and to release and discharge said county of Johnson from any and all liabilities to said Pacific railroad from and on account of, or by reason of said forty-seven bonds, and each of them and all interest, and at his own proper costs, charges and expenses, to employ counsel and defend said actions of Cruce, Colbern & Co., and of W. E. Borthick, against said county, in the name of said county, and to pay off, satisfy, and discharge, and release any and all writs, orders, judgments, or decrees, which may be issued, made, or entered in said actions in any courts having jurisdiction, and to hold the county perfectly harmless and free from any and all loss, liability, damage, or injury of any kind on account of said actions, and to give...