Paulson v. Ward County

• Decision Date: 24 July 1912
• Citation: 137 N.W. 486,23 N.D. 601
• Parties: PAULSON v. WARD COUNTY
• Court: North Dakota Supreme Court

137 N.W. 486

23 N.D. 601

PAULSON v. WARD COUNTY

Supreme Court of North Dakota

July 24, 1912

Rehearing denied September 24, 1912.

Appeal by defendant from an order of the County Court for Ward County, N. Davis, J., overruling a demurrer to the complaint in an action brought to recover for professional services for the support of the poor of Ward County.

Reversed.

Order reversed and order entered sustaining the demurrer. Appellant recovered taxable costs on this appeal.

Dudley L. Nash, State's Attorney, and George L. Ryerson Assistant State's Attorney, for appellant.

Where a claim against the county is presented to the Board of Supervisors and they allow a part of it and reject the rest a claimant accepting the portion allowed, knowing that the rest has been rejected, cannot recover in an action, the portion rejected. Brick v. Plymouth County, 63 Iowa 462, 19 N.W. 304; Cleveland County v. Seawell, 3 Okla. 281, 41 P. 592; Eakin v. Nez Perces County, 4 Idaho 131, 36 P. 702.

George A. McGee and John E. Martin, for respondent.

The unauthorized act of the overseer of the poor, in employing respondent to provide for the county charges in his district outside of the asylum may be ratified by a subsequent resolution of the board of county commissioners, where they could have authorized him, in the first place, to engaged said respondent. Hughes County v. Ward, 81 F. 314.

The allowance of a claim in part only by the board of county commissioners is no bar to an action against said county for the balance, where no appeal has been taken from such action of the board. Campbell County v. Overby, 20 S.D 640, 108 N.W. 247.

OPINION

GOSS, J.

This action is brought by a physician to recover for professional services and supplies furnished by him for the support of the poor of Ward county. The complaint recites the performance of services and the furnishing of supplies of the total reasonable value of $ 750, and that "bills in due form or law, duly verified and approved by a commissioner of the board as aforesaid, were presented to the board of county commissioners of Ward county for their consideration; and after mutilating said bills said board of county commissioners allowed the plaintiff herein the sum of $ 265, and no more. Wherefore plaintiff prays judgment against the defendant for the sum of $ 750, less a credit of $ 265." The trial court overruled a demurrer interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action. From this order defendant appeals.

The only deduction to be drawn from the complaint is that the county commissioners allowed $ 265 in full for the $ 750 of claims presented against the county, and that plaintiff has credited the $ 265 so allowed, and brought this action for the balance. This necessarily implies an acceptance by plaintiff of a warrant for county funds for the $ 265 allowed. Does the complaint show an executed accord and satisfaction barring plaintiff's recovery in the face of the demurrer? If this action was between private parties, we would have no hesitancy in holding the demurrer not well taken, as it would not sufficiently appear that the partial payment received was under an agreement that the same should be in full for the claim and so constitute an accord. But where, as in this case, in the payment of claims by counties or municipalities, the law requires the presentation of itemized and verified claims to the board of county commissioners as the administrative and fiscal agents of the county for their approval and determination, upon the fact of whether the services were rendered and goods furnished as charged for, as well as the reasonable value thereof, and consequent approval in whole or in part before allowance, and with the requirement that said board shall order warranty in payment to issue for the full amount and no more at which the claim is approved, under the presumption of the regularity of official action, the warrant is issued as the result of a quasi judicial finding by the board on the claim presented. Of all this plaintiff was conclusively presumed to have knowledge before acceptance of the warrant or the cash proceeds thereof, as he is bound to know the law under which he presented his claim and sought its allowance and under which the warrant was issued. And the pleading of the issuance of the warrant and in effect its acceptance amounts to the pleading of an accord and satisfaction, and precludes him from claiming only partial payment, and thereunder crediting the amount received as a partial payment on the claim presented. He was bound to know that a warrant could not be issued, and accordingly tendered him as other than full payment of his claims, which he pleads were presented and considered, and for which in toto the warrant was issued. With knowledge of the law thus imputed and conclusively presumed, the acceptance of the warrant operated as an accord and satisfaction within the provisions of §§ 5269 and 5271, Revised Codes 1905. As to necessity of presentation of claims and allowance and payment to the amount allowed, see §§ 3162-3166, 2389, 2393, Revised Codes 1905. As sustaining our conclusions, see Perry v. Cheboygan, 55 Mich. 250, 21 N.W. 333; Wapello County v. Sinnaman, 1 Greene 413; Brick v. Plymouth County, 63 Iowa 462, 19 N.W. 304; People ex rel. O'Mara v. Cayuga County, 17 N.Y.S. 314; Zirker v. Hughes, 77 Cal. 235, 19 P. 423; Rawlins v. Jungquist, 16 Wyo. 403, 94 P. 464, and opinion on rehearing in same case, 16 Wyo. 426, 96 P. 144; La Plata County v. Morgan, 28 Colo. 322, 65 P. 41; La Plata County v. Durnell, 17 Colo.App. 85, 66 P. 1073; Eakin v. Nez Perces County, 4 Idaho 131, 36 P. 702; Yavapai County v. O'Neill, 3 Ariz. 363, 29 P. 430; Cleveland County v. Seawell, 3 Okla. 281, 41 P. 592; Bowman v. Ogden City, 33 Utah 196, 93 P. 561; Green v. Lancaster County, 61 Neb. 473, 85 N.W. 439; United States v. Adams, 74 U.S. 463, 7 Wall. 463, 19 L.Ed. 249; United States v. Mowry, 154 U.S. 564, and 19 L.Ed. 256, 14 S.Ct. 1213; 1 Cyc. 239, and notes, and Cyc. annotations. Consult also Flagg v. Marion County, 31 Ore. 18, 48 P. 693; Rio Grande County v. Hobkirk, 13 Colo.App. 180, 56 P. 993; People ex rel. Morrison v. Board, 56 Hun 459, 10 N.Y.S. 88; which three cases recognize the doctrine, but turn on the question of pleading.

All the foregoing cases are in point. We give the following excerpts from some of them: "The council audited the claim at $ 50. Now if plaintiff was dissatisfied with this allowance, he should not have applied for and received the warrant on the treasurer and obtained payment thereof. He must be held to have acquiesced in the settlement thus made. . . . There is no good reason why plaintiff is not estopped, by accepting payment of the amount allowed, from making a further claim for the same services passed upon by the council." Perry v. Cheboygan, 55 Mich. 250, 21 N.W. 333. "The acceptance of the part allowed...