Huey v. Macon County

• Decision Date: 28 May 1888
• Parties: HUEY v. MACON COUNTY. JONES v. SAME.
• Court: U.S. District Court — Eastern District of Missouri

35 F. 481

HUEY v. MACON COUNTY.

JONES v. SAME.

United States Circuit Court, E.D. Missouri, Northern Division.

May 28, 1888

Sanders & Bowers, for plaintiffs.

R. G Mitchell and Guthrie & Dysart, for defendant.

Action by John E. Huey against Macon county, and by Joseph E. Jones against same, upon railroad bonds and coupons issued by defendant.

THAYER J.

In these cases plaintiffs are entitled to a judgment on the bonds by them severally sued upon, and on all the coupons except coupons Nos. 6, 7, and 8, attached to each of bonds Nos. 3, 12, 13 and 14.

1. The only defense affecting all of the causes of action is that of a variance between the proof and allegations. It is claimed that the respective plaintiffs have alleged that the bonds in suit were issued under section 17 of the general railroad law, in force in the year 1866, whereas it is contended that the proof shows that the bonds were issued under the thirteenth section of a special act, approved February 20 1865, to incorporate the Missouri & Mississippi Railroad. The defense cannot prevail, for two reasons: First. Because there is no variance. The declaration does not aver that the bonds were issued under the general railroad law. The allegation is that 'plaintiffs bought the bonds in reliance upon that law, and that it was in force when the bonds were issued ' Other portions of the declaration, however, show that the bonds were issued under the special act of February 20 1865. Second. But even if there was a variance of the kind supposed, (that is to say, a failure to state accurately the particular law under which the county court derived its power to make the subscription,) the variance could not be regarded as material. If the proof showed (as it does in this case) that power existed under any law to make the subscription and issue the bonds, it would be the duty of the court to allow the pleadings to be amended to conform to the proof. Such leave is not necessary, however, in this case, as the declaration in effect shows that the county court acted under the special law of February 20, 1865. To cover any possible doubt on the subject, the court will insert a finding in the judgment that the bonds were issued under the special act last mentioned. Such is the proof, and such is also the allegation.

2. The plea of the statute of limitations in the case of Huey v Macon County is sustained as to coupons 6, 7, and 8, maturing February 1st in the years 1875, 1876, and 1877, on each of bonds Nos. 3, 12, 13, and 14. Judgment for defendant will therefore be entered on the counts embracing those coupons. It is settled by the decision in Amy v. Dubuque, 98 U.S. 470, that the statute of limitations begins to run against coupons of municipal bonds from the time they mature, although they remain attached to the bonds. In the two cases of City v. Lamson, 9 Wall. 482, and City of...