Henry v. Mount Pleasant Twp. of Bates Cnty.

• Decision Date: 31 October 1879
• Parties: HENRY, Appellant, v. MOUNT PLEASANT TOWNSHIP OF BATES COUNTY.
• Court: Missouri Supreme Court

70 Mo. 500

HENRY, Appellant,

v.MOUNT PLEASANT TOWNSHIP OF BATES COUNTY.

Supreme Court of Missouri.

October Term, 1879.

Appeal from Bates Circuit Court.--HON. F. P. WRIGHT, Judge.

AFFIRMED.

A. Henry pro se., cited Wag. Stat., §§ 2, 4, p. 1001; Boston, &c., R. R. v. Portland, &c., R. R., 119 Mass. 498; N. Y. Dry Dock Co. v. Treadwell, 19 Wend. 525; 1 Chitty, (15 Am. Ed.) p. 9, note 2; Beach v. Hotchkiss, 2 Conn. 697; Stedman v. Shelton, 1 Ala. 86.

E. J. Smith and Holcomb & Biggs for respondent, cited Parsons on Contracts, (3 Ed.) vol. 1, pp. 25, 26; vol. 2, pp. 127, 128, 129; Morrow v. Starke, 4 J. J. Marsh. 367; Clark v. Cable, 21 Mo. 223.

NORTON, J.

This suit was instituted in the circuit court of Bates county upon the following agreement by plaintiff, one of the obligees therein, viz:

“This article of agreement, made and entered into this 18th day of April, 1873, by and between Thomas W. Childs, as supervisor of Mount Pleasant township, in the county of Bates, and State of Missouri, and for and on behalf of said township, party of the first part, and Charles C. Bassett and Antony Henry, of the county of Bates aforesaid, parties of the second part: Witnesseth, That the said party of the first part, as supervisor as aforesaid, and for and on behalf of the said Mount Pleasant township, and in compliance with a certain resolution of the inhabitants of said township, made and adopted at the regular annual meeting of the said township, on the 1st day of April, A. D. 1873, has employed the said parties of the second part to appear in and defend against four certain actions, which have been brought in the United States circuit court for the western district of Missouri, at Jefferson City, against the said Bates county, to recover the amount due on certain coupons attached to certain bonds made by the said Bates county, on behalf of said Mount Pleasant township to the Lexington, Lake & Gulf Railroad Company, and in all and any matters to defend against the collection of the amount due on the said bonds, and at all times to appear and defend against any or all actions which may be brought thereon. The said party of the first part, as supervisor as aforesaid, and on behalf of the said township, hereby agrees and obligates the said township to pay unto the said parties of the second part the sum of seven thousand dollars ($7,000), when the said actions, or each or either of them, or any other action or actions which may be brought on said bonds, are finally determined in the court or courts of last resort, and final judgment is entered in any of said courts in favor of the defendants, in which the validity and legal existence of the said bonds is determined. The amount of said fee to be then and at that time levied from the said Mount Pleasant township. And the said parties of the second part hereby agree and bind themselves to appear for the defendant in said actions, or any other action or actions which may be brought for the enforcement of the collection of said bonds, and to perform and do all such things, or any thing which may be necessary and proper, for the purpose of defending the collection of the said bonds or coupons thereto attached. It is understood herein that the said counsel are to determine whether it is advisable to take the said cases to the Supreme Court of the United States, if there should be a decision in the court below adverse to the said county.

Witness our hands and seals the day and year aforesaid.

THOMAS W. CHILDS,

[SEAL.]

Supervisor of Mount Pleasant Township, Bates County.

C. C. BASSETT.

[SEAL.]

A. HENRY.”

[SEAL.]

The petition, after alleging that defendant was a corporate body and the due execution of the contract by defendant, and by said plaintiff acting for himself, and said Bassett acting for himself, further alleges that said plaintiff and Bassett had defended against the collection of said bonds and interest, and had obtained the judgment of the Supreme Court of the United States declaring said bonds void in the case of Harshman v. Bates County, decided April, 1876. It is further alleged that afterwards, on the 29th day of May, 1876, the said Bassett combined and colluded with defendant to cheat and defraud plaintiff out of his fee of $3,500, and in furtherance of said purpose, the township board of directors, on said day, entered into a separate contract with said Bassett by which they agreed to settle with said Bassett separately upon the...