Isenhour v. Barton County

• Decision Date: 28 June 1905
• Parties: ISENHOUR v. BARTON COUNTY.
• Court: Missouri Supreme Court

88 S.W. 759

190 Mo. 163

ISENHOUR v. BARTON COUNTY.

Supreme Court of Missouri.

June 28, 1905.

1. COUNTIES — WARRANTS — WHEN INTEREST COMMENCES TO RUN.

Under Rev. St. 1899, § 3705, providing that creditors shall be allowed to receive interest at the rate of 6 per cent., when no other rate is agreed on, for all moneys, after they become due and payable, on any written contract, a county warrant providing for no rate of interest bears interest at 6 per cent. after presentation to the treasurer of the county and failure to pay because of there being no money in the treasury.

2. SAME — ASSIGNMENT OF WARRANT — ASSIGNMENT IN BLANK — RIGHTS OF ASSIGNEE — INTEREST.

Rev. St. 1899, § 6798, provides that no county treasurer shall pay a warrant drawn on him unless it be presented for payment by the person in whose favor it is drawn, or by his assignee, and that, when presented for payment, if there be no money, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same. Section 6799 prescribes a form for an assignment of such warrant. "For value received, I assign the within warrant to A. B. this ____ day of ____, 19__. Signed"___ and declares that no blank indorsement shall transfer any right to a warrant, nor authorize the holder to fill up the same. Section 6808 makes it a misdemeanor for a county treasurer to violate any of such provisions, and section 6771 declares that a county treasurer shall keep a book in which he shall enter all warrants presented; stating the date, amount, in whose favor drawn, by whom presented, and the date when presented. Section 3705 provides that, when no rate of interest is provided for, written contracts shall bear interest at the rate of 6 per cent. after they become due and payable. Held, that where a county warrant was assigned in blank, and delivered to an assignee for value, and he presented it in person for payment, which was refused, as shown by the indorsement of the county treasurer on the back of the warrant and on his warrant register, interest did not commence to run on the warrant from the time of its presentment, owing to the fact that there was no proper assignment.

3. SAME — ACTION ON WARRANT — BURDEN OF PROOF.

In an action on a county warrant by the assignee thereof, in order to entitle him to recover interest from the time of presentment of the warrant and refusal of payment for lack of funds, the burden was on plaintiff to show that he had complied with all the requirements of law.

Brace, C. J., and Marshall and Fox, JJ., dissenting.

In Banc. Appeal from Circuit Court, Barton County; H. C. Timmonds, Judge.

Action by Simeon Isenhour against Barton

county. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Thos. W. Martin and E. L. Moore, for appellant. Thurman, Wray & Timmonds, for respondent.

BURGESS, J.

This is an action upon 95 warrants issued by the county of Barton to different persons, and sold and delivered to the plaintiff. The petition was filed on the 5th day of April, 1902, and contained a separate count upon each warrant. In its answer defendant offered to let judgment go for principal and interest upon all counts except the 10th, 12th, 14th, 16th, 17th, 18th, 19th, 20th, 21st, 22d, 23d, 24th, and 42d. As to these defendant offered to let plaintiff take judgment on each of them for the amount of the principal of the warrants, but denied defendant's liability for any interest thereon. The court, however, rendered judgment upon all the warrants, including interest from the time of their presentation and demand of the county treasurer of payment of the warrants, so that the only question for this court to determine on this appeal, under the facts, is as to whether the trial court erred in rendering judgment against the county for the interest of the warrants sued on in the counts numbered as before stated. As the same questions are involved with respect to all the warrants mentioned in these counts of the petition, any one of them may be taken as an illustration. We will therefore take the warrant sued upon in the twelfth count, which is numbered 1,699. It was issued to Lee Livingston by the county court of said county on February 8, 1898. This warrant was presented to the county treasurer for payment, as shown by his warrant register and his indorsement on the back of the warrant, on the 11th day of February, 1898, by the plaintiff, Simeon Isenhour, and was by the treasurer protested for the want of funds with which to pay it. When this warrant was presented to the treasurer by Isenhour there were two blank printed assignments (so called for convenience) on the back of it, the first of which was signed by Livingston, the payee, as follows: "For value received ____ assign the within warrant to ____ this ____ day of ____ 1 ___. Lee Livingston." After the institution of this suit, and after the warrant was presented to the treasurer by Isenhour, on the 11th day of February, 1898, for payment, this blank form was filled out by the payee, Livingston, so as to read at the time of trial as follows: "For value received I assign the within warrant to Simeon Isenhour, this 11th day of February, 1898. Lee Livingston."

Plaintiff's contention is that the warrant drew interest from the date of its presentation and demand of payment, on the 11th day of February, 1898. Defendant contends that under sections 6798 and 6799, Rev. St. 1899, the warrant never commenced to draw interest, because it was never presented for payment by the payee, or by any other person to whom it had been assigned by him, in accordance with the requirement of the statute; in other words, it had never been presented for payment by any person who had the right to demand and receive payment. No question is raised respecting the pleadings.

The warrant now under consideration, and which was introduced in evidence by plaintiff, is as follows:

"$172.40. State of Missouri. No. 1,699. The Treasurer of the County of Barton Pay to Lee Livingston One hundred seventy-two and 40/100 Dollars out of any money in the Treasury belonging to the County Revenue Fund. Given at the courthouse in Lamar, Mo., this 8th day of February, A. D., 1898. By order of the County Court. Wm. P. Scott, President. Attest: Chas. H. Smith, Clerk. By Geo. Rumsey, Deputy."

The indorsements on the back of said warrant at the time of trial were as follows:

"The within warrant presented for payment, and no money in the treasury for that purpose, this 11th day of Febry. 1898. Douglass Inglish, County Treasurer.

"For value received I assign the within warrant to Simeon Isenhour, this 11th day of Febry. 1898. Lee Livingston.

"For value received ____ assign the within warrant to ____ this ____ day of ____, 1___."

Upon these facts the court rendered judgment on the twelfth count in the petition (being on warrant numbered 1,699) in favor of plaintiff and against the defendant for the sum of $216.51, which included interest from the date of presentation at the rate of 6 per cent. per annum. There was embraced in the same judgment, as shown by the record, the same kind of judgment respecting all the other warrants described in the petition; that is, judgment was rendered in favor of the plaintiff for the amount of all the warrants, with interest at 6 per cent. per annum from the time of their presentation for payment up to the time of rendition of the judgment.

The only error complained of is as to the action of the trial court in allowing interest upon said contested warrants, which had been sold and assigned to plaintiff by blank indorsements.

In support of its contention defendant relies on sections 6798, 6799, 6808, Rev. St. 1899, which read as follows:

"Sec. 6798. No county treasurer in this state shall pay any warrant drawn on him unless such warrant be presented for payment by the person in whose favor it is drawn, or by his assignee, executor or administrator; and when presented for payment, if there be no money in the treasury for that purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same.

"Sec. 6799. All warrants drawn on the treasurer of any county shall be assignable, and every assignment of any such warrant shall be in the following form: For value received, I assign the within warrant to A. B. this ____ day of ____, 19__. Signed C. D. No blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same."

"Sec. 6808. Any county treasurer violating any provisions of this article shall be deemed guilty of a misdemeanor, and shall, on conviction, be punished," etc.

Plaintiff, in support of the judgment of the court, relies on section 6771, Rev. St. 1899, which is as follows:

"Sec. 6771. He shall procure and keep a well-bound book, in which he shall make an entry of all warrants presented to him for payment, which shall have been legally drawn for money by the county court * * * stating correctly the date, amount, number, in whose favor drawn, by whom presented, and the date the same was presented; and all warrants so presented shall be paid out of the funds mentioned in such warrants, and in the order in which they shall be presented for payment."

County warrants are creatures of the statute, and can only be issued in accordance therewith, but, when no rate of interest is prescribed upon their face, they bear interest at the rate of 6 per cent. per annum, as provided by section 3705, Rev. St. 1899, after presentation to the treasurer of the county by which issued, and failure to pay because of there being no money in the treasury for their payment. Robbins v. Lincoln County, Court, 3 Mo. 57; Skinner v. Platte County, 22 Mo. 438; State ex rel. v. Trustees, 61 Mo. 155. Such warrants are merely evidences of indebtedness, nonnegotiable, and the Legislature had the power and authority to prescribe their form, and by whom they should be signed and attested, and...