Linn County v. Farmers' & Merchants' Bank
| Decision Date | 09 June 1903 |
| Citation | 75 S.W. 393,175 Mo. 539 |
| Parties | LINN COUNTY v. FARMERS' & MERCHANTS' BANK et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Linn Circuit Court. -- Hon. Jno. P. Butler, Judge.
Affirmed.
E. R Stephens for appellants.
(1) If $ 359.70, the amount of the judgment was retained by defendants as a credit due plaintiff on account of interest it was by mistake. However, the total sum of $ 722.77 was paid to the county treasurer by defendants covering the entire term of two years from May 4, 1897, to May 2, 1899, at four and one-twentieth per cent interest on all daily balances, which were paid to said county monthly, accepted and received by him as such treasurer, without protest or objection, as a true and correct account, computed on all daily balances, which presumptively passed to the credit of the road or bridge fund, as provided by Laws 1891, p. 104 sec. 3214. The remedy of plaintiff (if it has any) is not in this form of action, but should be in the nature of a bill in equity to correct the mistake, if any in the payments and settlements with the county treasurer asking for the amount improperly withheld, with interest. No mistake, fraud or error was pleaded or proven by plaintiff. The petition does not state a cause of action. County of Marion v. Phillips, 45 Mo. 75; Kronberger v. Binz. 56 Mo. 121; Quinlan v. Keiser, 66 Mo. 603. (2) The county treasurer was authorized and empowered to receive the interest upon said county funds from the defendants in behalf of said county, and after receiving them as such treasurer, neither his nor the defendants' action could be impeached, especially in the absence of fraud, collusion or mistake of fact, and it follows that the circuit court erred in refusing declarations of law numbered 1, 2, 3 and 5, as asked by defendants. Laws 1891, p. 104, sec. 3214; State ex rel. v. Roberts, 60 Mo. 402; State ex rel. v. Smith, 65 Mo. 464; State ex rel. v. Ewing, 116 Mo. 138. (3) In refusing declaration of law No. 4 as asked by defendants, the court clearly disregarded the law. The plaintiff can in no event recover in this case. There was no evidence in the case, either direct or inferential, that any demand, prior to the commencement of this suit, was made upon the defendants or any of them as depository of Linn county funds, to pay the balance sued for as a credit for interest due on daily balances, or evidence of any refusal to do so. Landis v. Saxton, 105 Mo. 491.
Johnson & Bresnehen and Thomas P. Burns for respondent.
The judgment in this case is for the right party and should be affirmed. R. S. 1899, secs. 6817, 6818 and 6819. This is a suit for interest accruing under the contract between plaintiff and defendant bank, and not a suit by some citizen on the bond of the depository for a penalty to go to the road and bridge fund. R. S. 1899, secs. 6819 and 6820. The fact that the treasurer turned over all the money he received from the defendant bank, and was released, was not a settlement between the plaintiff and defendant bank. R. S. 1899, sec. 6829.
This is an action to recover $ 424.50, claimed to be the balance due plaintiff by defendants as depository of its funds for two years from the 4th day of May, 1897, at four and one-twentieth per cent interest, on daily balances. Plaintiff had judgment for the sum of $ 359.70. Defendants appeal.
The facts briefly stated are, that the Farmers' and Merchants' Bank was at the time of the institution of this suit on April 18, 1900, and prior thereto, a partnership banking institution, and C. W. Trumbo, C. E. Trumbo, Marion Cave, Lee Meyer and James Brown were the partners and as such its owners.
At the May term, 1897, of the county court of Linn county, said defendant bank was selected by said county court depository for plaintiff for the two years next following said May term of said court. A contract was then entered into between plaintiff and defendant bank by which the bank was to pay plaintiff four and one-twentieth per cent interest, computed on daily balances, and remaining as a credit to plaintiff, in monthly payments to the treasurer of said county, one C. E. Kelley. The bank became the depository of the county funds on the 10th day of May, 1897, and continued as such until the 2d day of May, 1899.
During that time Kelley, county treasurer, deposited the county's funds with defendant bank, and from time to time, the cashier of defendant bank, C. E. Trumbo, entered credits on Kelley's bank book of interest due the county on daily balances, and when such credits were entered there was nothing said as to whether such credits were the full amount of interest due the county on daily balances to its credit at the time such credits were made, or not, and no settlement was had with the bank. No dispute arose and the treasurer did not know whether the defendant bank had given the county credit on his bank book for all the interest due the county under said contract or not until about the time the contract between plaintiff and defendant expired, but about the time the term of the defendant as depository expired, George W. Adams, county clerk for plaintiff county at the instance of the county court, took Kelley's bank book showing the account of plaintiff and defendant bank, and made a computation on the daily balances to plaintiff's credit with defendant at the rate of four and one-twentieth per cent, and it was then discovered for the first time that the interest due plaintiff under said contract was $ 1,147.27, whereas, the defendant bank had paid plaintiff and entered on Kelley's book only $ 722.77, leaving the balance due the county, as shown by the said contract, Kelley's bank book, and Adams's computation, of $ 424.50. When the attention of the officers of defendant bank was called to the discrepancy of $ 424.50, and demand made on the bank for a settlement with plaintiff, they contended for the first time that some part of the county's fund deposited with the bank belonged to the capital school fund, and that on such part as was capital school fund the county could not require interest under the said contract, and also asserted that the bank had paid the county all it owed under said contract, after the interest on the capital school fund was deducted, so that no dispute arose until the time of settlement between plaintiff and defendant bank...
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