Erskine v. Steele County

• Decision Date: 08 November 1894
• Docket Number: 6731
• Citation: 60 N.W. 1050,4 N.D. 339
• Court: North Dakota Supreme Court

60 N.W. 1050

4 N.D. 339

CHAS. E. ERSKINE, et al v. STEELE COUNTY

No. 6731

Supreme Court of North Dakota

November 8, 1894

Appeal from District Court, Steele County; McConnell, J.

Action by Charles E. Erskine and William H. Crosby, administrators of the estate of Messena B. Erskine, deceased, against Steele County, on certain county warrants. From a judgment for plaintiffs, defendant appeals.

Reversed.

Judgment reversed, and action dismissed.

George Murray, (F. W. Ames of counsel,) for appellant

The warrant to E. J. McMahon for transcribing records, was illegally issued. The county commissioners had no authority to contract for such services. Rasmussen v. Board of County Commissioners, 43 N.W. 3. Counties have only such powers as are expressly conferred upon them or necessarily implied. McCormack v. Commissioners, 2 N.W. 707; Supervisors v. Sullivan, 8 N.W. 12; Merritt v Batty, 8 N.W. 559; Gould v. Stevens, 23 N.Y 463; Perrin v. C. H. & Del. Co., 9 How. 172; Bradley v. Mayor, 20 N.Y. 312. The act of the county commissioners in adding discount to the warrants was illegal and the discount portion of the warrants is void. Arnot v. City of Spokane, 33 P. 1063; Clark v. Des Moines, 19 Ia. 199; Foster v. Coleman, 10 Cal 279; Bauer v. Franklin Co., 51 Mo. 205; State v. Wilson, 9 S.W. 155; Dorsey v. Whitehead, 1 S.W. 97; Barton v. Swempton, 44 Ark. 437; Sharp v. Pulaski Co., 4 Dill. 209.

Newman, Spalding & Phelps, for respondent.

The commissioners had power to procure the transcription in question. Comp. Laws, § § 545, 592; Webster Co. v. Taylor, 19 Ia. 117. They also had power to contract for the building of a jail for the county. Section 607, Comp. Laws. Their power being otherwise unrestricted they could make any contract which would be valid if made by an individual. Dillon Munc. Corp. 472. Brady v. Mayor, 1 Barb. 584; Kelley v. Mayor, 4 Hill 263; Jackson Co. v. Rundleman, 100 Ill. 379. Had an individual made the contracts payable in gold coin, they would have been valid. Sam v. Gluckauf, 87 Am. Dec. 121, note. Counties have power to pay in money instead of warrants. Martin v. Tyler, 60 N.W. 392.

OPINION

WALLIN, J.

This action is brought to recover the amount purporting to be due according to the terms of certain county warrants issued by the officials of Steele County, and which were subsequently purchased by Massena B. Erskine, deceased, during his lifetime. The warrants were drawn on the general fund of the county, and were presented to the county treasurer for payment. Payment was refused for want of funds, and the warrants were then registered for payment. The warrants which are now contested are two in number, described as follows: A warrant dated November 19, 1883, for $ 2,680, issued and delivered to one E. J. McMahon; a county warrant dated March 31, 1884, for $ 389.77, issued and delivered to one Charles R. Black. The fact of issuing and delivering the warrants, and their sale to the deceased during his lifetime, is not controverted. The defense set out in the answer as to both warrants, when briefly stated, is that they were issued without authority of law and without lawful consideration. A jury trial was waived, and, after a trial upon the merits, the court filed its findings of fact and conclusions of law, and directed judgment for the plaintiff, whereupon judgment was entered for the full face amounts of said warrants, with interest added.

The findings are as follows: "(1) That the said defendant, on the 19th day of November, 1883, made and delivered to E. J. McMahon a certain county warrant or order upon its county treasurer, whereby said treasurer was directed to pay to said E. J. McMahon, or order, the sum of $ 2,680 out of the general funds of the treasury of defendant, not otherwise appropriated, and belonging to said county. That said county warrant or order is in the words and figures following, to-wit: 'Treasurer of Steele County: Pay to E. J. McMahon, or bearer, twenty-six hundred and eighty 00-100 dollars out of the general funds in the treasury, not otherwise appropriated, for transcribing records in Traill and Griggs Counties.' That said warrant was thereafter, for value, duly transferred to this plaintiff, and was on the 30th day of November, 1883, duly presented to the treasurer of said county defendant for payment, and payment was refused, and the said warrant was thereupon endorsed: 'Presented for payment November 30th, 1883, but not paid for want of funds in treasury. Clarence J. Paul, County Treasurer.' That said warrant was so as aforesaid issued to said McMahon under and by virtue of a contract made and entered into by and between said McMahon and the said defendant, under and by virtue of which it was agreed that the said McMahon should transcribe for the defendant so much of the records of the Counties of Traill and Griggs as related to real property within the County of Steele for the sum of $ 2,010 in cash. That the said warrants of said county were, at the time, of the issue of said warrants, worth only seventy-five cents on the dollar; and the said warrant was so as aforesaid issued for the sum of $ 2,680, pursuant to, and in fulfillment of, the contract of the said defendant and the said McMahon. That no part of said warrant has been paid. (2) That on the 31st day of March, 1884, defendant made, executed, and delivered to Charles R. Black its certain county warrant or order upon its treasurer, whereby said treasurer was directed to pay to said Charles R. Black, or order, the sum of $ 389.77 out of the general funds in the treasury of the defendant, not otherwise appropriated, which said county warrant or order was in the words and figures following, to-wit: 'Treasurer of Steele County. Pay to Charles R. Black, or bearer, three hundred and eighty-nine and 77-100 dollars, out of the general funds in the treasury, not otherwise appropriated, for amount due on county building account of, discount on orders.' That thereafter, and on the 31st day of March, 1884, said warrant was presented to the treasurer of the defendant for payment, and payment thereof refused, and said warrant indorsed as follows, to-wit: 'Presented for payment March 31st, 1884, but not paid for want of funds in the treasury, and registered for payment March 31st, 1884.' That said warrant was so as aforesaid issued to said Black for the balance due him under and by virtue of the contract made and entered into between said Black and the defendant, whereby the said Black agreed to erect for the defendant a certain jail building, for which it was, under and by virtue of said agreement, agreed that he should receive $ 1,210 in cash, and that the defendant should issue its warrant for sufficient to cover the discount on its warrants at the then market price of same, and to make the amount paid by such warrants equal to the sum of $ 1,210 in cash. That said warrant so as aforesaid issued to said Black was the balance due him under and by virtue of said contract. That said warrant was thereafter, for a valuable consideration, duly transferred to this plaintiff, and no part of the same has been paid.

"On the foregoing facts I find as conclusions of law: Conclusions of law: (1) That the warrant or order mentioned and described in the first finding of fact herein is a valid, existing indebtedness of the said defendant, and that the plaintiff is entitled to recover thereon the sum of $ 2,680, with interest thereon from the 30th day of November, 1883, amounting to the sum of $ 4,526.24. (2) That the warrant mentioned and described in the second finding of fact herein is a valid, existing indebtedness of the defendant, and the plaintiff is entitled to recover thereon the sum of $ 389.77, with interest from and after the 31st day of March, 1884, amounting to the sum of $ 649.26. That plaintiff is entitled to judgment for his costs and disbursements herein, to be taxed by the clerk."

The findings of fact are not assailed in this court, and the appellant assigns error only upon the conclusions of law found by the trial court, to the effect that the plaintiff was entitled to judgment. It is conceded that the territory now embraced within the boundaries of Steele County was formerly, and until March, 1883, included within the limits of the counties of Traill and Griggs. It appears from the first finding of fact that the warrant issued to McMahon for the lump sum of $ 2,680 was issued in accordance with the terms of a contract between McMahon and the county commissioners, but upon considerations which were distinct and independent in their nature. Under the contract, McMahon was to transcribe from the records of Traill and Griggs Counties such parts thereof as related to real estate situate within the county of Steele; and by the terms of the contract a warrant was to be delivered to McMahon, in payment for the work, sufficiently large to yield the contract price, taking into account the discount at which the warrant would or could be sold in the market. In short, the commissioners agreed to issue, and did issue, a warrant which would yield, when sold in the market, $ 2,010 in cash, which was the contract price for the work. County warrants are nonnegotiable paper, within the meaning of the law merchant, and hence the plaintiff purchased the warrants subject to whatever defenses were available as against the parties to whom they were originally made payable. The plaintiff has all the rights which the original holders of the warrants had, but has no other or different rights. Was the warrant in question a valid warrant when...