Pettis Cnty. v. Kingsbury

• Citation: 17 Mo. 479
• Parties: PETTIS COUNTY, Plaintiff in Error, v. KINGSBURY, Defendant in Error.
• Decision Date: 31 January 1853
• Court: Missouri Supreme Court

17 Mo. 479

PETTIS COUNTY, Plaintiff in Error,

v.KINGSBURY, Defendant in Error.

Supreme Court of Missouri.

January Term, 1853.

1. A county court made an order appointing a commissioner to let the building of a bridge to some undertaker who would wait for his pay “until the amount is received from the state out of the road and canal fund.” The commissioner, under this order, let the building of the bridge to A., who entered into a bond, which recited the order of the court, and contained an agreement “on the part of the county court, as said court,” to pay a certain sum on the completion of the work, provided that, “if there be not a sufficient amount of the dividend of the road and canal fund on hand, at the time of the completion of the bridge, the said undertaker is to wait on or indulge the said county by receiving of said county as fast as said funds shall arrive.” After the completion of the work, A. received a warrant on the county treasurer, ““payable out of the road and canal fund,” which was assigned to the plaintiff. Held, the plaintiff could only look to the road and canal fund, and could not compel the county to pay the warrant out of its own proper funds.

Error to Pettis Circuit Court.

The county court of Pettis county, at its August term, 1845, made the following order: “Ordered, that Henry S. Greer be appointed commissioner to let the building of a bridge at or near Wasson's mill; the site of said bridge to be selected by himself, to be built after the same plan of the bridge near Thomson's mill. The undertaker to furnish his own materials, and to wait for the pay until the amount is received from the state out of the road and canal fund, but to receive interest at the rate of ten per cent. per annum on the amount from due until paid, and to report his proceedings to the first term of this court after the letting; he is to require of the undertaker bond with approved security,” &c.

In pursuance of this order, the commissioner let out the building of the bridge on the sixth day of September, 1845, when Harden Corum, Absalom McCoy and John T. Woodson became the undertakers for the sum of two thousand nine hundred dollars, who entered into bond with security, at the time last above stated, which bond was in the usual form, and after reciting the order above set forth, and stipulating to build the bridge in the manner agreed upon, contained this agreement on the part of the county: “For and in consideration of the building of the said bridge as aforesaid, the county court of Pettis county, as said court, agrees to pay to the said Harden Corum, Absalom McCoy and John T. Woodson the sum of two thousand nine hundred dollars, so soon as the said bridge shall have been completed as aforesaid; provided, however, and it is agreed by and between the said court and the said undertakers that, if there be not a sufficient amount of the dividend of the said county of the road and canal fund on hand, at the time of the completion of the said bridge, the said undertakers are to wait on or indulge the said county by receiving of the said county as fast as said funds shall arrive; and the said county court agrees to pay the said undertakers interest on the amount which said county may not pay at the time of the completion of the said bridge, at the rate of ten per cent. per annum until paid.”

At the February term, 1848, of the county court of Pettis county, James Kemp was appointed commissioner of the bridge, who reported, during the same term, that the bridge had been built according to contract, with some slight variations, made by the directions of the former commissioner; this report was received by the court and ordered to be filed, and, at the same time, it was further ordered that a warrant issue to Harden Corum for the sum of two thousand three hundred and ninety-eight dollars and forty-three cents, payable out of the road and canal fund, to bear interest at ten per cent. per annum, as warrant number nine. Thereupon, a warrant of the following tenor was issued and delivered to said Corum:

“Warrant No. 9.

Treasurer of the county of Pettis, pay to Harden Corum, two thousand three hundred and ninety-eight dollars and 43-100 cents, payable out of the road and canal fund, to bear interest at the rate of ten per cent. per annum from this date.

Given at the court house, this 9th day of February, 1848.

By order of the county court. John S. Brown, president.

Test: A. Roberson, clerk.”

By endorsement for value received, this warrant was assigned to Jere. Kingsbury, the plaintiff, on the ninth day of March, 1848. No part of said warrant, or the interest thereon, was ever paid by the county.

This suit was commenced on the 24th day of March, 1852, by Jere. Kingsbury, the plaintiff, and the question is, whether he is bound, under the facts stated, to wait on the road and canal fund for payment, that being an uncertain and fluctuating fund, known to be so at the time of letting the bridge, or whether he can sue the county and recover the full amount from her out of her own proper fund?

The court below found for the plaintiff.

Napton, for plaintiff in error. The plaintiff, being assignee of the warrant upon the road and canal fund, must look to that for his rights. He has no concern with the original contract between Corum and the county. Glenn v. Smith, 2 Gil. & Johns. 508. Harris v. Johnston, 3 Cranch, 311. 4 Litt. 289, 317. But conceding the plaintiff to stand in the shoes of Corum in every respect, then it is submitted that a fair construction of the order of the county court, the contract and the warrant, in short of the whole transaction, shows a clear intent on both sides to charge the road and canal fund of Pettis county, and that alone. R. C. 1845, title “Road and canal fund.” The fluctuating nature of the fund was known to the contracting party, and we may well presume that he contracted with reference to it, and at a price greatly beyond the cash value of the work.

Adams and Leonard, for defendant in error. 1. By the contract, the road and canal fund was not relied upon alone for payment, but was merely to be looked to as a means of payment; and after waiting a reasonable time upon this fund, a right of action accrued for the whole debt and interest. 2. By the contract, the road and canal...