Jefferson County v. McGrath's Ex'r
| Decision Date | 11 November 1924 |
| Citation | 205 Ky. 484,266 S.W. 29 |
| Parties | JEFFERSON COUNTY v. MCGRATH'S EX'R. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Jefferson County, Chancery Branch, First Division.
Action by the County of Jefferson against Frank McGrath and another. Defendant McGrath dying pending the action, his executor was substituted. From a judgment in favor of the executor, the County appeals. Affirmed.
J. Matt Chilton, of Louisville, for appellant.
Fred Forcht and Ben. F. Washer, both of Louisville, for appellee.
The reader is referred to the opinion in the case of Robertson v. Jefferson County, 266 S.W. 27, this day decided, in which the facts involved herein are set out. However, in addition to the legal questions there considered McGrath pleaded that, upon the representations of the county that the warrant was a valid obligation, he purchased same at its face value, and received payment thereon, without any notice of a defect therein; that at the time he purchased and collected the warrant Robertson was solvent, and financially able to reimburse him for any loss he might sustain to the extent of $1,350 or more, and remained in such financial condition until the fall of 1917, but that since the latter date and at present he is utterly insolvent; that all of the records of the transaction were in possession of the county that a mistake, if any, should have been discovered earlier that, if the county had exercised the slightest diligence, he (McGrath) could have recouped any loss he sustained from Robertson, and this remedy has been lost by the laches of the county, and these facts are relied upon as an estoppel. This is controverted by a reply, in which it is also alleged that the mistake was not discovered until 1918.
In the Robertson Case, supra, we decided that a mistake existed for which Robertson was primarily liable, but that the action as to him was barred by the statute of limitation. As to the affirmative pleas made by McGrath, it may be said that no sufficient reason is shown for the long delay in discovering the mistake. The county was in possession of all the records. The final estimates purported to give the amounts which had previously been allowed to Robertson. The aggregate of all these allowances was fixed at $1,350 less than appeared in the preceding estimates and orders of court. A simple addition would have disclosed this. It was open and obvious, and Robertson concealed nothing; so it appears the mistake should have been discovered without delay. Green County v. Howard, 127 Ky. 379, 105 S.W. 897, 32 Ky. Law Rep. 243.
It further appears that the facts as to Robertson's solvency and insolvency were as claimed by McGrath, and, as between individuals an estoppel might exist, or, at any rate, the court might apply the familiar rule that, when one of two innocent persons must suffer, the loss should be borne by the one whose...
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