Fremont County v. Warner

• Court: Idaho Supreme Court
• Writing for the Court: HUSTON, C. J.
• Citation: Fremont County v. Warner, 7 Idaho 367, 63 P. 106 (Idaho 1900)
• Decision Date: 06 December 1900
• Parties: FREMONT COUNTY v. WARNER

63 P. 106

7 Idaho 367

FREMONT COUNTY v. WARNER

Supreme Court of Idaho

December 6, 1900

SHERIFF-INDEBTEDNESS TO COUNTY-COMPROMISE BY GIVING NOTE-ULTRA VIRES-ESTOPPEL.-W being found indebted to the county upon a settlement of his accounts as sheriff, compromised such indebtedness by giving his note for a certain sum, with the other defendants as joint makers. In an action, upon such note by the county defendant pleaded ultra vires, that plaintiff had no authority to accept such compromise. Held, that the defendant having accepted the benefit of the compromise was estopped from pleading ultra vires.

(Syllabus by the court.)

APPEAL from District Court, Fremont County.

Affirmed, with costs to respondent.

Hawley Puckett & Hawley, for Appellants.

A county in this state is treated as a municipal corporation, and it is a well-known rule that a municipal corporation is subject to the same disabilities as ordinary corporations, in the absence of special statutory regulations. The supreme court of Idaho has passed upon the question of the power of corporations in Salmon River M. & S. Co. v. Dunn, 2 Idaho 26, 3 P. 911, and squarely decided that a corporation organized to mine and smelt ores cannot purchase a chose in action. The court therein says: "In every contract there must be mutuality and therefore parties capable of contracting." The principle of the case cited as applied to the case at bar would settle the question involved and render further discussion unnecessary. What greater right has Fremont county, a corporation, to take by execution and delivery a note such as is involved herein, than had the plaintiff in the case cited to purchase or take the chose in action therein mentioned? (Currier v. Railroad Co., 11 Ohio St. 28; Commonwealth v. Erie etc. Co., 27 Pa. 339, 67 Am. Dec. 471, and note; St. Louis v. Weber, 44 Mo. 544, 100 Am. Dec. 324; Wheeler v. Board, 39 N.J.L. 291; Fire Co. v. Commonwealth, 75 Pa. 291; Darst v. Gale, 83 Ill. 136.) Counties being mere artificial persons, their powers are to be exercised through the agencies provided by law, such as the county commissioners. (Montgomery Co. v. Barber, 45 Ala. 237; House v. Los Angeles Co., 104 Cal. 73, 37 P. 796; Frandzen v. San Diego Co., 101 Cal. 317, 35 P. 897; People v. Pueblo, 2 Colo. 360; Pacific Bridge Co. v. Clackamas Co., 45 F. 217; O. S. M. Co. v. Elbert Co., 73 F. 324; Murphey v. Napa Co., 20 Cal. 497; Keller v. Hyde, 20 Cal. 594; Lebcher v. Custer Co., 9 Mont. 315, 23 P. 713; Commercial State Bank v. Antelope Co., 48 Neb. 496, 67 N.W. 465; Lancaster Co. v. Fulton, 128 Pa. 48, 18 A. 384; Alleghany Co. v. Parrish, 93 Va. 615, 25 S.E. 882.) A board of county commissioners is confined in making contracts to the power expressly granted to it by the statute, and to the implied powers incidental and necessary to the execution of such expressed powers and the performance of the duties enjoined upon it. (7 Am. & Eng. Ency. of Law, 2d ed., 989; Smith v. Los Angeles Co., 99 Cal. 628, 34 P. 439; Hyde v. Kenosha Co. , 43 Wis. 129.)

F. S. Dietrich, for Respondent.

To appellant's plea of ultra vires respondent answers: 1. That under our law the action of the board in question was not ultra vires; 2. If such action were ultra vires, such defense could not be pleaded by these appellants, who themselves were competent; 3. If such action were ultra vires, under the facts and circumstances as shown by the record, the appellants would be estopped from pleading such defense. Contract not ultra vires. (Town v. Mappin, 14 Ill. 93, 56 Am. Dec. 501; Agnew v. Brawl, 20 Am. & Eng. Corp. Cas. 134; Collins v. Welch, 58 Iowa 72, 12 N.W. 121, 43 Am. Rep. 111; Hall v. Baker, 74 Wis. 118, 42 N.W. 104, 27 Am. & Eng. Corp. Cas. 208; Caldwell v. Wright, 25 Ill.App. 74; Shanklin v. Commonwealth, 25 Ohio St. 583, 16 Ohio St. 353, 369, 522; Scollay v. Butte County, 67 Cal. 249, 7 P. 661; Buffalo v. Bettinger, 76 N.Y. 393; Marshall Co. v. Hanna, 57 Iowa 372, 10 N.W. 745.) Ultra vires is no defense to competent party. (Parsons on Contracts, 369-371; National Bank v. Whitney, 103 U.S. 99, 26 L. ed. 443; Bear River etc. Orchard Co. v. Hanley, 15 Utah 506, 50 P. 613; Whitney Arms Co. v. Barlow, 63 N.Y. 62, 20 Am. Rep. 504.) Defendants are estopped from pleading ultra vires. (Clark on Corporations, 179-187; 2 Beach on Corporations, sec. 424.)

HUSTON, C. J. Quarles and Sullivan, JJ., concur.

OPINION

HUSTON, C. J.

This action was brought upon a promissory note made by defendants to plaintiff. The case was heard by the trial court upon the following stipulation of facts: "It is agreed that the facts herein involved are as follows: 1. That for the year 1895 and 1896 the defendant J. P. Warner was the duly elected, qualified, and acting sheriff of the plaintiff county. 2. That upon the expiration of his said term of office the plaintiff county made a claim against said defendant Warner for moneys amounting to over $ 1,000, which it was claimed said defendant had received as such officer and had not accounted for; that, upon the refusal of said defendant to pay the same, suit was instituted against said Warner, which said suit was pending in the district court of Fremont county at the date of execution and delivery of the note in question. 3. That there was at said time a dispute between plaintiff and said Warner as to how much, if anything, was due from said Warner to plaintiff, and the solvency and financial responsibility of said Warner and his bondsmen were in doubt. 4. That thereupon the attorneys for the respective parties, being authorized so to do, entered into a compromise settlement, by which it was agreed that there was due plaintiff the sum of $ 525, and said suit should be dismissed in consideration of the defendants agreeing to...