Henderson v. Koenig

• Decision Date: 25 October 1905
• Parties: HENDERSON v. KOENIG et al.
• Court: Missouri Supreme Court

91 S.W. 88

192 Mo. 690

HENDERSON v. KOENIG et al.

Supreme Court of Missouri.

October 25, 1905.

1. MONEY RECEIVED—NATURE AND GROUNDS OF OBLIGATION.

Assumpsit for money had and received is of an equitable character and lies in general, whenever the defendant has received money which in equity and good conscience he ought to pay to plaintiff.

2. MONEY RECEIVED—EXTENT OF RECOVERY.

Plaintiff, on being elected judge of probate of the city of St. Louis, contended that Laws 1897, p. 82, providing a salary for the probate judge in the place of fees of his office, as given by Rev. St. 1889, § 3407, and providing for the election of a clerk, was unconstitutional, and sued to have the same so declared. Defendant K. had been elected clerk of such court, under such act, and plaintiff permitted K. and his deputies to perform the necessary services in connection with such office, and to collect the fees and pay over the same to the city, as provided thereby. The office could not have been run without the services performed by K. and his deputies, and the amounts paid to them by the city as their salaries under the act did not exceed the reasonable value thereof. Held, that though plaintiff, after the Supreme Court had declared the act of 1897 unconstitutional, was entitled to recover in assumpsit from K. and the city, the fees of his office so collected, he could not recover the amounts so paid to K. and his deputies for their services.

In Banc. Appeal from St. Louis Circuit Court; D. D. Fisher, Judge.

Action by W. W. Henderson against C. William Koenig and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

W. M. Williams, Morton Jourdan, and Adiel Sherwood, for appellant. Chas. W. Bates and Wm. F. Woerner, for respondents.

GANTT, J.

The original petition in this case was a suit in equity to prevent the defendant Koenig from collecting and paying into the treasury of the city of St. Louis fees allowed by statute to the probate judge for the transaction of probate business in the city of St. Louis, and to prevent the city of St. Louis from receiving such moneys, on the ground that the act of March 20, 1897 (Laws 1897, p. 82), providing that the judge of said probate court of the city of St. Louis should thereafter receive a salary, instead of the fees allowed by the statute, was unconstitutional and void. To that bill a demurrer was interposed in the circuit court of St. Louis, which was sustained by the circuit court, and, the plaintiff refusing to plead further, final judgment was rendered in behalf of the defendants, Koenig and the city of St. Louis, and thereupon an appeal was taken to this court by the plaintiff, and the judgment of the lower court was reversed and the cause remanded, with instructions to proceed in accordance with the opinion of this court. The opinion in that case was reported in 168 Mo. 356, 68 S. W. 72, 57 L. R. A. 659. After the cause was remanded to the circuit court, the plaintiff filed an amended petition, by which the action was changed to one at law for money had and received by the city for the sum of $42,449.68, with interest at the rate of 6 per cent. from May 19, 1902, and also for interest upon each sum of money paid by Koenig into the city treasury from the date of each payment paid to May 19, 1902; the city in the meantime having paid the plaintiff the sum of $42,013.65 on account of sums due him for fees collected by the defendant Koenig and paid into the city treasury.

The city of St. Louis in its answer admitted that the city was liable to account to plaintiff for fees collected by it in the sum of $91,513.33, but alleged that it was entitled to retain and counterclaim the sum of $42,499.68 paid by it for salaries for the clerk and deputies and assistants of the plaintiff during the period for which it was accountable for fees received by it. In the second count of the answer, it was alleged that said fees were paid into the city treasury by the defendant Koenig and accepted by the city in reliance, in good faith upon the validity of sections 1764, 6244, 6245, and 6246, Rev. St. 1899, which provided a salary as compensation for the plaintiff and took away his fees, and provided for the election of the clerk of the probate court, and that, the city of St. Louis relying upon section 6246, Rev. St. 1899, and the municipal assembly also relying upon the validity of the section aforesaid, passed an act and ordinance, known as sections 1248 and 1249 of the Municipal Code of St. Louis, providing for the salaries of the clerk of the probate court and the deputies, and, believing that said statutes and the ordinance aforesaid were valid, the city was required to pay out in salaries as set forth in an Exhibit A the sum of $42,499.68 before the said statutes were held to be void by the Supreme Court, and after full arguments and mature deliberation had been declared valid by the circuit court and while an appeal by the plaintiff to the Supreme Court without bond was pending. It was further alleged in the answer that the orderly administration of justice and public necessities required the city to pay the salaries aforesaid. It is further alleged that, had said statutes been known or believed to be unconstitutional by plaintiff or defendant, plaintiff would have been required to appoint a clerk, deputy clerks, and assistants, and to pay them a reasonable value for their services out of his funds, or out of the fees to which he was entitled and which were collected by defendant Koenig and paid into the city treasury, and that the clerk, deputies, and assistants so required would have been the same in number as provided for in said statutes and ordinance, and the reasonable value of their services, which plaintiff would have been required to pay, is the same as provided for in said ordinance and which was in fact paid; and by reason of these facts the salaries paid by defendant city, as shown in Exhibit A, injured directly to the benefit and advantage of plaintiff and was paid on his account, and the defendant city should be and is in equity and good conscience entitled to credit therefor as against him. It is further alleged that the clerk, deputies, and assistants, whose salaries were paid as aforesaid, acted and performed the respective duties of their office for and in behalf of plaintiff as the judge of the probate court ever since he took the office, and that plaintiff himself was so uncertain and doubtful as to the validity of said statutes and the ordinance that he at times deliberately and intentionally accepted, ratified, approved, and sanctioned all their acts as being within the scope of their authority, and that plaintiff never objected to their acting as such, or requested any of them to discontinue their services; nor did plaintiff make any attempt to make any different payments, but, on the contrary, was consulted and did approve the payments of those acting and paid as aforesaid. It is then alleged that plaintiff is in law and good conscience estopped from claiming as part of the amount due him the amounts so paid for salaries as aforesaid.

The reply filed by plaintiff consists, first, of a general denial, and then of a plea in which it is alleged by the plaintiff that the fees collected by the city, which belonged to plaintiff and should have been paid to him by defendant Koenig, were against plaintiff's will and protest so collected and paid into the city treasury from time to time, and that such collection and payment took place under and by virtue of a certain ordinance, which purports to have been duly enacted by the municipal assembly and approved by the mayor, and the ordinance is set out in full. It is then alleged that everything had and done by the city of St. Louis and defendant Koenig in and about the collection of fees due and payable for the transaction of the probate business by probate court or the probate judge, which in justice and of right belonged to plaintiff and should have been paid to him, was had and done by defendants under and by virtue of the terms and provisions of the ordinance set forth at length, and that defendants had no further authority or right to act in the premises, save and except the pretended right and authority which they pretended and assumed to exercise under said ordinance.

At the trial of the cause it was admitted that the plaintiff was elected judge of the probate court of the city of St. Louis at the November election in 1898, and afterwards qualified and performed the duties of his position from January 1, 1899, for the four years next following. It was also admitted that up to April 28, 1902, the sum of $91, 533.33 of public fees earned by the probate court and judge of St. Louis after January 1, 1899, were paid into the city treasury by the defendant Koenig, acting as clerk of the probate court, at the dates and in the amounts shown in Exhibit A attached to the city's answer. It was also admitted that on May 19, 1902, the plaintiff was paid by the city the sum of $49,013.65, and that said payment took place under a stipulation signed by the parties by which it was agreed that the city of St. Louis was indebted to the plaintiff in the said sum of $49,013.65, the sum being the difference between the amount of probate fees received by the city and the amounts paid out by the city in salaries for clerk and deputies in said office, and that the total amount of salaries so paid was $42, 499.68, which amount the defendant and city of St. Louis claimed a right to retain, and the plaintiff a right to demand the entire amount collected by the city, and in order to narrow the issue in dispute, so as to confine them to those matters in actual dispute, and in order to avoid the payment of interest upon withheld money, the city of St. Louis prayed the court to make the order directing it to pay to the plaintiff the sum of $49, 013.65, to be paid by the city and received by the plaintiff without...