McNulty v. Kansas City
| Citation | 198 S.W. 185,201 Mo.App. 562 |
| Parties | OWEN H. McNULTY, Respondent, v. KANSAS CITY, Appellant |
| Decision Date | 02 July 1919 |
| Court | Court of Appeals of Kansas |
Appeal from Jackson Circuit Court.--Hon. Daniel E. Bird, Judge.
REVERSED.
Judgment reversed.
Numa F Heitman for respondent.
J. A Harzfeld and A. F. Smith for appellant.
When city taxes on real estate in Kansas City become delinquent, payment thereof is enforced by a sale of each delinquent tract to a purchaser who pays to the city the unpaid tax, with interest, penalties and costs, and receives from the city treasurer a Certificate of Purchase acknowledged by him before one of the clerks in his office who holds a notary public's commission for this purpose. For this acknowledgment the sum of fifty cents is included in the amount paid to the city by the purchaser, that being the fee allowed by statute to a notary for taking and certifying to an acknowledgment. These delinquent sales, and the consequent execution of the Certificate of Purchase, cover a period of about two weeks in November or December of each year; and at the close of said sales many certificates are acknowledged.
Plaintiff was a clerk in the treasurer's office from and including the year 1904 down to June, 1910, and was the notary before whom the treasurer acknowledged the certificates of purchase at the end of the two weeks of delinquent sales in each year, and also the tax deeds to such tracts as were never redeemed. On August 12, 1912, he brought this suit to recover from the city the sum of $ 2850.50 as due him for acknowledgments taken, as above indicated, during the years 1908 and 1909. He recovered judgment in the trial court for the full amount sued for, and the city has appealed.
It is admitted that the above sum represents the total amount of notary fees for such acknowledgments taken by plaintiff while in the treasurer's office during those two years, and that the same were collected by the treasurer and paid into the general fund of the city treasury. It is the contention of the city that plaintiff waived the right to receive payment of these fees and that he is now estopped from claiming them.
In 1885 the Supreme Court of this State held, in Leach v. Hannibal & St. Joseph R. Co., 86 Mo. 27, that a notary public in the service of a railway company could waive his right to compensation for notarial services; that having entered into a contract of service to the railway company for a fixed salary, he, prima facie, agreed to give the latter his entire time; and the notarial work having been done in that time, then, in the absence of any "agreement or understanding or line of conduct between the parties" showing that such employee was to receive the statutory fees for the notarial service rendered his employer in addition to his stipulated salary, he could not recover of his employer for such notarial service, and in the absence of any such showing he would be deemed to have waived the right to claim such fees.
Following this rule thus laid down, the city in February, 1892, passed an ordinance known as Ordinance No. 3910 which provided that one of the clerks in the treasurer's office should be a notary public, that the salary paid by the city to him as a clerk should be payment in full for all services rendered by him, including those of a notarial character, and that all fees paid for such notarial work should be turned into the city treasury.
Under this ordinance, in April, 1892, one Wood, became a clerk in the treasurer's office and was the notary who took the acknowledgments during his stay therein, which was until February, 1893. He sued for his fees, and in Wood v. Kansas City, 162 Mo. 303, the Supreme Court held the above-mentioned ordinance void, and that since it was void it was the same as if it had never existed, and Wood was not estopped from recovering his fees by reason of having accepted his salary for his services as clerk for the reason that the ordinance was nothing and he had done nothing to waive his fees or to create an estoppel. On Page 310 of the Wood case the court say: "It is not claimed that he entered into any express contract, aside from the ordinance by which his fees as notary were to be received and retained by defendant, and, the ordinance being void, there was no express contract at all with respect thereto, hence nothing to estop plaintiff from claiming them by reason of said ordinance." And on page 311 of said Wood case the court, in distinguishing it from the Leach case, say that Leach may have (Italics ours.) In other words, the Supreme Court held that in the Woods case there was no agreement, or line of conduct on Wood's part by which he consented that he would allow the city to have the notary fees and accept in full of his services the fixed salary paid him, and hence he could not be denied his fees but was entitled to them in addition to his salary. We are of the opinion that the case we are now called upon to decide differs in this respect from the Wood case. In the case at bar not only did plaintiff make an express agreement to waive his notary fees and accept a stipulated salary in full for all his services including those of a notarial character, but he thereafter continued on in the service of the city without change of terms and under circumstances that necessarily imply that he waived the right to the notarial fees and accepted in lieu thereof a certain fixed monthly sum paid to him as salary in full of all his services including those of a notarial character. If he did this, he is not entitled to now turn around after his relations with the city have terminated, and, nearly three years after the notarial services were performed, demand the fees therefor in addition to the money he received from the city with the manifest intention on his part, and the understanding implied from the circumstances, that he was not charging for his notarial services but was accepting his monthly stipend in full of all services. The facts which we think manifest that agreement, intention and course of conduct on his part are as follows:
It is conceded that the certificates of purchase for each year were executed and acknowledged by the treasurer at one time and the work of the notary in filling out and attesting the certificates of acknowledgments was done during his office hours as clerk in the treasurer's office. If in doing this at any time he had to work overtime he was paid for such overtime in accordance with the regular rates prescribed for overtime work at a clerk.
After the decision in the Woods case the city, in 1901, repealed ordinance No. 3910 hereinabove mentioned, which required the notary-clerk to accept only his salary as clerk and directed the turning of the notary fees into the city treasury, and enacted an ordinance No. 18581 which provided that the notary-clerk in the treasurer's office should enter into a contract agreeing to accept as compensation for his services as clerk the sum of $ 5 per month and that he should receive, in addition thereto, the notarial fees accruing in said office. Under this ordinance the notary-clerk in the treasurer's office got $ 5 per month and the notary fees. In this way such clerk's compensation, instead of running from $ 75 to $ 90 per month as the other clerks in the office, ran up to a very large sum upon the number of tracts sold for delinquent taxes.
In 1904 a certain city treasurer selected the plaintiff as "a young man that he could trust" and who would "keep his word with him" and "do the square thing by him" and made a private agreement with plaintiff to appoint and make him the notary-clerk if he, plaintiff, would agree to accept the $ 5 per month paid by the city and $ 60 per month paid by the treasurer out of his own pocket and allow the notary fees to be kept by the treasurer. This "gentlemen's agreement" continued through 1904 and 1905, the...
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