Morrow v. Pike County

• Decision Date: 15 June 1905
• Citation: 88 S.W. 99,189 Mo. 610
• Parties: MORROW v. PIKE COUNTY.
• Court: Missouri Supreme Court

88 S.W. 99

189 Mo. 610

MORROW v. PIKE COUNTY.

Supreme Court of Missouri, Division No. 1.

June 15, 1905.

1. COUNTIES — CONTRACTS — RECORD ENTRIES — SUFFICIENCY.

Rev. St. 1899, § 6759, requires county contracts to be in writing, and subscribed by the parties or their duly authorized agents. Section 6760 requires such contracts to be executed in duplicate, and one copy to be filed with the clerk. Held that, conceding that a contract entered into by the county court must appear on its record, it is not necessary that the record entry thereof set forth all the terms of the contract, and an entry of a contract reciting the employment of an attorney in a certain case, described by its title, to defend the same to final determination in the courts of last resort— the compensation to be paid out of the permanent school fund—is sufficient to make the contract binding on the county, without reciting the details thereof as shown by the written contract drawn up in duplicate between the county and the attorney.

2. SAME — SCHOOL FUND — PROTECTION AGAINST ATTACK — EXPENSES.

Where an attorney is employed by a county to defend against an attack on the county public school fund provided for by Rev. St. 1899, § 9824, the expenses of such defense, including the payment of the attorney's compensation, should be borne by the school fund, and not by the general county revenue.

3. SAME — CONTRACTS — NECESSITY OF RECORD ENTRY.

A contract made by the county court for the employment of an attorney, not evidenced by any record entry, is void.

4. SAME — CONTRACTS ON PAST CONSIDERATION — VALIDITY.

A contract made by the county court providing for payment of fees to an attorney "in consideration of services rendered and to be rendered" is totally void, both as to the county and the attorney, under Rev. St. 1899, § 6759, prohibiting counties from making any contract except upon a consideration wholly to be performed subsequent to the making of the contract.

5. INTEREST — COMMENCEMENT OF PERIOD — CONTINGENT ATTORNEY'S FEE.

Under Rev. St. 1899, § 3705, providing that when money is to become due under a written contract, and no rate of interest is provided, interest runs at 6 per cent. from the time the money is due, a fee owed to an attorney under a written contract providing for the payment of the fee on the express condition of a successful defense of the suit in the circuit court, and any other court to which the case should be appealed or otherwise taken, becomes due on, and bears interest from, the final determination of the case in the court to which it is last taken.

6. APPEAL — INSUFFICIENT JUDGMENT.

The fact that judgment against appellant is for too small a sum is not reversible error.

7. JUDGMENTS — RESTRICTION.

Where a contract for the employment of an attorney to defend the county school fund provides for the payment of the attorney out of that fund, a judgment in the attorney's favor on the contract should provide for its satisfaction out of the school fund, and a general judgment against the county is erroneous.

Appeal from Circuit Court, Pike County; David H. Eby, Judge.

Action by Julia M. Morrow, executrix of the estate of William H. Morrow, deceased, against Pike County. From a judgment for plaintiff, defendant appeals. Modified and affirmed.

John W. Jump, Ball & Sparrow, E. W. Major, Geo. W. Emerson, and J. D. Hostetter, for appellant. N. W. Morrow, Pearson & Pearson, and Dempsey & McGinnis, for respondent.

LAMM, J.

To the notable and marking embellishments gracing Pike county in history and tradition, in story as well as song, there was added a spice of uniqueness in a gift by the General Assembly of Missouri, by an act approved January 25, 1847 (Laws 1846-47, p. 198), in favor of Watson Seminary, there situate, in the form of fines then in the treasury of the county, and of all moneys thereafter accruing to said county by way of fines, penalties, or forfeitures— the principal to be kept intact as a permanent fund, and the accretions of interest to be used for the current purposes of said seminary, all under the supervision of the county court—the details of which the curious may find dug out of the dust of the past and spread of record by this court in Watson Seminary v. County Court of Pike County, 149 Mo. 57, 50 S. W. 880, 45 L. R. A. 675.

In 1859 (Laws 1858-59, p. 46) the Legislature repealed so much of the act of 1847 as diverted said fines, penalties, and forfeitures from the school fund of Pike county, and gave them as a bounty to Watson Seminary. This repealing act, we infer, was possibly for a spell ignored by the county court, as unconstitutional. In 1893, however, that court refusing longer to permit such diversion of the school fund, but keeping trace of the amount of fines, penalties, and forfeitures thereafter accruing in a fund designated as the "Rejected Fund," used the same to swell the corpus of the common school fund as provided in the Statutes at Large. Thereupon sharp litigation sprang up, Watson Seminary suing out a writ of mandamus against the county court of Pike county; seeking by such moving writ to coerce that court into setting aside all said fines, penalties, and forfeitures for the benefit of the seminary's permanent fund. When things were in this fix, on the 3d day of August, 1896, the court entered into a contract with Wm. H. Morrow, an attorney of the Pike bar, to take care of the interest of the county public school funds involved in that suit, and to assist the prosecuting attorney in their defense. The order made in the premises is as follows:

"It is hereby ordered by the county court that W. H. Morrow, attorney heretofore in charge of the defense on the part of Pike county in the suit pending against it, and prosecuted by Watson Seminary as plaintiff in mandamus proceedings in the circuit court of Pike county, be, and is hereby, employed by this court, pursuant to an agreement this day entered into with him by the court, to defend said suit to a final determination thereof in the court or courts of last resort to which the same may be taken. Compensation agreed on and expenses and costs to be paid out of permanent school fund."

And as a part of the business arrangement then made the following contemporaneous written contract was executed:

"State of Missouri, County of Pike—ss.: County Court of said County, August Term, 1896. In consideration of services to be rendered by W. H. Morrow, Attorney at Law, in the suit or action now pending in the Circuit Court of Pike county, Missouri, in Watson Seminary, Pl's vs. the said County of Pike and the Judges thereof, Def'ts, by mandamus to compel the payments therein claimed, the said County of Pike, by and through its County Court, in regular session convened, agrees and obligates itself to pay to said W. H. Morrow the sum of twenty-five hundred dollars, upon the express condition, however, that said Morrow shall successfully defend said suit in the said Circuit Court and in any other court or courts to which said cause shall be appealed or otherwise taken pursuant to law; and the said W. H. Morrow agrees and obligates himself to render such services as is necessary, according to the best of his ability, in defending said suit or action. It is further expressly understood that if said suit or action be, in the end judicially determined in favor of the plaintiff therein and against the defendant therein, then this obligation to be void; it is understood and agreed, however, that the said County of Pike is to advance and pay, when required, such sum or sums of money in the defense of said suit necessary and requisite to pay all costs and expenses of court fees and printing expenses of transcript or records and briefs prepared in said cause on the part of defendant.

"Made in duplicate and signed and sealed this 3rd day of August, 1896.

                                   "J. W. McIlroy
                                      "Presiding Judge
                                   "J. R. S. McCune
                                      "Associate Judge
                                   "Eugene W. Stark
                                      "Associate Judge.
                                   "W. H. Morrow."
                

In pursuance of that employment, Morrow ably and fully performed his part of the contract, tried the case nisi, and won it there, followed it to this court on appeal, and won a crowning victory here on the 28th day of March, 1899. 149 Mo. 57, 50 S. W. 880, 45 L. R. A. 675. This court decided all issues in favor of the county court, and, by holding the repealing act constitutional, released the county from liability for fines, penalties, and forfeitures accruing after 1893, designated as the "Rejected Fund," and in effect overturned and struck to the ground the title of Watson Seminary to all that portion of the permanent fund thereof remaining in the hands of the court, and which had accrued prior to 1893 from such fines, penalties, and forfeitures after the repealing act aforesaid —the amount involved, by and large, being many thousands of dollars.

While this litigation was running its course, on the 9th day of February, 1898, Morrow and the judges of the county court undertook to make a new agreement. The material alteration from the original contract consisted in a provision that while, as in the original contract, Morrow was to be paid nothing if the litigation was adverse, he was to be paid $1,250 out of the rejected fund and $1,250 out of the permanent fund in case of success as to both funds, but only $1,250 in case of success as to one fund; and the original contract was, in set terms, abrogated. This new arrangement also referred to past as well as future services as the consideration on Morrow's part, but it was not spread of record, nor was any order made of record authorizing it to be made, or referring to it; and it is only evidenced by a written memorandum signed by the judges and Mr. Morrow.

Some four months—to be exact, on August 9, 1899—after the opinion of this court in the mandamus case was handed down,...