Moody v. Cass Cnty.

• Decision Date: 30 April 1885
• Citation: 85 Mo. 477
• Parties: MOODY, Plaintiff in Error, v. CASS COUNTY.
• Court: Missouri Supreme Court

85 Mo. 477

MOODY, Plaintiff in Error,

v.CASS COUNTY.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Cass Circuit Court.--HON. N. M. GIVAN, Judge.

AFFIRMED.

Railey & Burney for plaintiff in error.

(1) The assignor of plaintiff was a general creditor of defendant. International Bk. v. Franklin Co., 65 Mo. 113; Clark v. Des Moines, 19 Ia. 199. (2) The records of the county court should show the proceedings and contracts of the court. Milan v. Pemberton, 12 Mo. 602; Dennison v. St. Louis Co., 33 Mo. 171; Maupin v. Franklin Co., 67 Mo. 329. The decision of the lower court was wrong, because it is admitted in the record of this case that the only entry made by the county court concerning the services of Bouse as road overseer, was the one as follows: “Ordered that a warrant issue to John Bouse for $295.40 on road and canal fund for his services as road overseer.” There was, therefore, no evidence of any agreement having been made by Bouse with the county court to look to the road and canal fund for his pay. (3) A county warrant when drawn is in effect a promissory note. Floyd Co. v. Day, 19 Ind. 450; 65 Mo. 113; 19 Ia. 199. The giving of a promissory note is not a payment of the original indebtedness, unless it be so agreed between the parties. Colebroke on Collateral Securities, sec. 29, and cases cited; Steamboat Charlotte v. Hammon, 9 Mo. 59; Murray et al. v. Taylor, 30 Mo. 263; Howard et al. v. Jones et al., 33 Mo. 583. (4) The suit mentioned in the answer, and on which defendant relied to support its plea of res judicata, was not upon the warrant, but was an action for conversion of funds belonging to the road and canal fund, which instead of being set apart for the payment of said warrant, were transferred to some other fund and used for other purposes. (5) The assignment of the warrant to plaintiff was an equitable assignment of the debt itself. Walker v. Mauro, 18 Mo. 564; Bk. v. Bogy, 44 Mo. 18; Jones v. Hurst, 67 Mo. 572.

Wm. L. Jarrott and H. Clay Daniel for defendant in error.

It is to be inferred from the acceptance by Bouse of the warrant on the road and canal fund that he agreed to look to that fund alone for payment of his claim. Moody v. Cass Co., 74 Mo. 307; State, etc., v. Macon Co., 68 Mo. 29; Kingsbury v. Pettis Co., 48 Mo. 207; Campbell v. Polk, 49 Mo. 214, and 76 Mo. 57.

PER CURIAM.

This was a suit brought by plaintiff to recover $295.40 for work and labor alleged to have been performed by plaintiff's assignor as road overseer. The defendant answered alleging that the work and labor was performed, but at the time due was adjusted and paid by the county by the issue and delivery of a county warrant for the amount on the road and canal fund, and then and there accepted with a full knowledge of all the facts, etc. As a further answer it is alleged that in 1875 plaintiff sued the defendant on the warrant issued and accepted as above stated; and recovered judgment for, and received on said judgment, all the money in the road and canal fund in Cass county, etc. The plaintiff in his reply admitted that his assignor, John Bouse, at the time said warrant was issued to him, believed the road and canal fund to be the most reliable in Cass county and accepted the same in good faith believing it would be paid, etc.

The evidence tended to prove that the work and labor performed was the building of a public road between Harrisonville in Cass county and Warrensburg in Johnson county. That the assignor, Bouse, accepted the warrant on the road and canal fund in payment therefor; and that he so received it because “said road and canal fund at the time said warrant was issued, was the only fund in Cass county on which warrants when drawn were considered worth their face.” This road and canal fund was one which was applicable “to the construction and improvement of roads, bridges or canals, and to no other object.” R. S., 1855, p. 1365, sec. 10.

I. It would be inferred in the absence of evidence to the contrary, that for such service, and the acceptance of a warrant on the road and canal fund without objection, that the payee would look to that fund alone for payment. It would amount to an agreement with the county,...