Duncan v. Scott County

• Decision Date: 16 June 1900
• Parties: DUNCAN v. SCOTT COUNTY
• Court: Arkansas Supreme Court

57 S.W. 934

68 Ark. 276

DUNCAN v. SCOTT COUNTY

Supreme Court of Arkansas

June 16, 1900

Appeal from Scott Circuit Court, STYLES T. ROWE, Judge.

Judgment reversed and cause remanded.

Mechem & Bryant and Leming & Hon, for appellants.

There was no contract bye appellant to give his fees. Yelv. 11; Ch Cont. (11 Am. Ed.) 12; 11 Ark. 689; 47 Ark. 519; 64 Ark. 648. There was never a meeting of minds. Cases supra. Even if there had been, the county judge, except as a court, duly sitting, had no authority to make an agreement of the kind. 38 Ark. 213; 49 Ark. 145; 47 Ark. 234; 9 Ark. 320; 55 Ark 437. There was no consideration moving to appellant. While his motive may have been to save the county expense, that did not constitute a consideration. 14 Wall. 570-6. There is no mutuality to the contract. No consideration is valuable upon which no action will lie for enforcement or breach. 64 Ark 648; 93 Cal. 169; 4 Ark. 251; 1 Ch. Cont. 35, 52, 58, 68; 4 M. & G. 860, 896; 8 Pick. 392; 2 B. & P. 73; Caine's Cas. 104; 1 Met. 278; 1 Vt. 420; 4 Johns. 84; 1 Murph. 181; 2 Term R. 763; 7 Dowl. 781, 786; 2 Lev. 161; 3 Term R. 17, 22, 23; 9 Am. & Eng. Enc. Law, 914; 72 Ia. 130. Appellant was not estopped. 1 Big. Fraud. (1st Ed.) 438-9; Big. Est. 485, 486; 31 Ark. 701.

H. N. Smith, intervener, pro se.

There was sufficient consideration for the promise and appellant is estopped. 1 Pars. Cont. 444; 27 Ark. 407; 31 Ark. 631; 32 Ark. 468; 37 Ark. 53.

BUNN C. J. WOOD and RIDDICK, JJ.

OPINION

BUNN, C. J.

This is a suit by appellant, F. M. Duncan, as county clerk of Scott county, for certain fees alleged to be due him for official services in the matter of calling in the county scrip of said county for examination, cancellation or re-issuance, under the statute. The claim was allowed in the county court, and H. N. Smith, a citizen and taxpayer of said county, for himself and all other taxpayers of the county, took an appeal from the allowance and judgment of the county court to the circuit court, where the claim was disallowed, and Duncan appealed to this court in due form.

The defense was that the appellant had agreed with the county judge, before the order calling in the scrip was made, that he would make no charges for his fees. This agreement was also made by the sheriff, and the saving of these fees to the county seems to have been one of the inducements which led the county judge to call in the scrip. The sheriff made no charges for his services, but the appellant, as clerk, claiming that he had made no definite agreement on the subject, filed his claim in due form, and that was the beginning of this suit.

The circuit court made the following declaration of law on the subject: "The court declares the law to be that F. M. Duncan is estopped from claiming anything for services rendered touching the order for and the reissuing the county scrip of Scott county; that the county judge relied on his promise not to charge anything for his services, and, if he was permitted to charge for such services, it would result in an injury to Scott county, which would not have resulted but for the promise of gratis services on the part of Mr Duncan. He, with a full knowledge of all the facts touching a matter, cannot mislead another to his injury, and then recover on a claim based on and growing out his own wrong. The law allows a county judge to make an order calling in county scrip and reissuing the same. Hence it may be well assumed that the legislators, when enacting the law, supposed it would be beneficial. The presumption is, such an order is beneficial to the county. This being true, it enures to the benefit of each citizen alike. Hence it enured to the benefit of F. M. Duncan, as a citizen of Scott county."

While it may be a presumption that the calling in the scrip was a benefit to all the citizens of Scott county, that presumption does not arise from any concession Duncan may have made as to his fees, nor from any bargain the county judge may have made with him in relation thereto, but rather from the fact that the county court, exercising a sound discretion as to whether or not the occasion demanded the calling in of the scrip made the order for that purpose. Whether or not the question...