Prickett v. Madison County.

• Court: Appellate Court of Illinois
• Writing for the Court: WALL, P. J.
• Citation: Prickett v. Madison County., 14 Ill.App. 454, 14 Bradw. 454 (Ill. App. 1883)
• Decision Date: 31 August 1883
• Parties: JOHN A. PRICKETTv.MADISON COUNTY.

14 Ill.App. 454

14 Bradw. 454

JOHN A. PRICKETT

v.MADISON COUNTY.

Appellate Court of Illinois, Fourth District.

August Term, 1883.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed October 10, 1883.

Messrs. HAPPY & TRAVOUS, for appellant; that the verdict was clearly against the weight of evidence and a new trial should have been granted, cited I. C. R. R. Co. v. Chambers, 71 Ill. 519; McGregor v. McDevitt, 64 Ill. 261; Fox River Mfg. Co. v. Reeves, 68 Ill. 403; Chicago v. Lavelle, 83 Ill. 482; C., R. I. & P. R. R. Co. v. Dingmon, 1 Bradwell, 162; Drury v. Dungan, 2 Id. 15; Dunton v. Chamberlain, 1 Id. 361; Boudreau v. Boudreau, 45 Ill. 480; Ammerman v. Teeter, 49 Ill. 400.

The statement in the handwriting of the treasurer was rendered by him while he was still the agent of the county, and was in relation to the subject-matter of the agency, and should have gone to the jury as an admission against the defendant: Linblom v. Ramsey, 75 Ill. 246; Wagonseller v. Rexford, 2 Bradwell, 455; 1 Greenleaf on Ev., §§ 113, 462; Story on Agency, §§ 134-137; Burlington v. Calais, 1 Vermont, 385; Mathers v. Phelps, 2 Root, 150; Stockton v. Demuth, 7 Watts, 39; Gilson v. Wood, 20 Ill. 38; Mix v. Osby, 62 Ill. 192; Cook v. Hunt, 24 Ill. 539; M. C. R. R. Co. v. Gougar, 55 Ill. 503; Jenks v. Burr, 56 Ill. 452; La Salle Co. v. Burr, 55 Ill. 452; Burt v. French, 70 Ill. 254; Craig v. Rohrer, 63 Ill. 325; McCoy v. People, 71 Ill. 113; Grimshaw v. Paul, 76 Ill. 166; 2 Starkie on Ev., 5th Am. ed., 22.

It was error to exclude all the evidence of appellant in reference to receipts and his having the treasurer's receipts for the bonds: 1 Phillips on Ev. 587; Hinchman v. Whetstone, 23 Ill. 185; Scholes v. Ackerland, 15 Ill. 474; Keith v. Mafit, 38 Ill. 303; First Nat. Bk. v. Priest, 50 Ill. 321; Kaskaskia Bridge Co. v. Shannon, 1 Gilm. 15; Snapp v. Peirce, 24 Ill. 157.

As to instructions: C., B. & Q. R. R. Co. v. George, 19 Ill. 510; Hosley v. Brooks, 20 Ill. 115; Calhoun County v. Buck, 27 Ill. 440; Pfund v. Zimmerman, 29 Ill. 269; Rice v. The People, 38 Ill. 435; Illinois Cent. R. R. Co. v. Benton, 69 Ill. 174; Bradley v. Parks, 83 Ill. 169; Nichols v. Bradsby, 78 Ill. 44; Lachman v. Deisch, 71 Ill. 59; Alexander v. Town of Mt. Sterling, 71 Ill. 366; I. & St. L. R. R. Co. v. Miller, 71 Ill. 463; Gibson v. Webster, 44 Ill. 483; Harnit v. Thompson, 46 Ill. 460; Bullock v. Narrott, 49 Ill. 62; Bailey v. Godfrey, 54 Ill. 507; Cushman v. Cogswell, 86 Ill. 62.

Messrs. METCALF & BRADSHAW, Messrs. WISE & DAVIS and Mr. J. H. YAGER, for appellee; as to the question of voluntary payment, cited Elston v. City of Chicago, 40 Ill. 514; City of Detroit v. Martin, 34 Mich. 170; Bradford v. City of Chicago, 25 Ill. 411; Stover v. Mitchell, 45 Ill. 213.

WALL, P. J.

Appellant brought an action of assumpsit against appellee to recover the sum of $2,000.

The county of Madison had voted to fund its indebtedness by issuing new bonds bearing a lower rate of interest, and in pursuance of this vote the board of supervisors, on the 5th of February, 1877, passed an order providing for the preparation and authentication of the new bonds and their exchange for old ones.

It is unnecessary to state the details of this order, except the provision that the new bonds “when issued, shall be placed in the custody of the chairman of the board, who, together with the county treasurer, is authorized to exchange and dispose of the same, and out of the proceeds thereof to take up and cancel the bonds, in lieu of which the bonds alone are to be issued, said bonds to be taken up, canceled, etc.”

The appellant was then chairman of the board, and Hugh E. Bayle was county treasurer, and out of the transactions in connection with the issuing and exchange of the new for the old bonds, has arisen the present controversy. Shortly after the passage of the order, the new bonds were placed in the custody of the plaintiff to the amount of $385,000.

They were then in blank and required the signatures of the chairman of the county board, county treasurer and county clerk and the impression of the county seal.

The process of exchange began. The plaintiff, as chairman of the board, would sign the new bonds as they were called for, hand them to the county treasurer, who would take them to the county clerk, who would sign and seal them and return them so signed and sealed to the county treasurer for his signature.

The treasurer would then give the clerk a receipt for the bonds, and these receipts were passed over by the clerk to the plaintiff and were held by the latter as his vouchers.

In December, 1877, the board of supervisors called for a statement, and a conference was held for that purpose between the finance committee of the board, the plaintiff and the county treasurer.

The plaintiff insisted that he had passed over to the treasurer, by the process above stated, bonds to the amount of $303,000, the treasurer insisting that he had received no more than the receipts called for.

The matter was made the subject of investigation by the board, and the plaintiff being unable to produce the receipt, the board demanded the deficit should be made good by the treasurer or the plaintiff; the latter having nothing but his own memorandum to sustain him, finally in March, 1878, paid the amount in dispute to the county, the payment being made to Rugger, who had succeeded Bayle in the office of county treasurer, Bayle's term having expired in December, 1877.

Subsequently plaintiff found, as he claimed, the missing receipt, bearing date July 18, 1877, and brought this action to recover back the money paid to the county in March, 1878.

This is in substance the theory of the plaintiff's case. The county resisted the demand, and upon a trial by jury, the issues were found for the defendant, and a motion for a new trial having been overruled, the plaintiff brings the record here, assigning various grounds of error. The evidence was conflicting.

The plaintiff testified in his own behalf, and Bayle was a witness for the defendant, denying that he had received more than $301,000 from the plaintiff, and there was other evidence tending to prove and disprove the plaintiff's allegations. We are urged by the plaintiff to reverse the case, on the ground that the verdict was contrary to the evidence; but after carefully reading and considering all the testimony, we do not feel at liberty to do so. As the case will be again tried, we express no opinion as to the question of fact involved, and will only remark in this connection that there was such a conflict in the evidence as to call for great accuracy in the rulings of the court.

It seems to be conceded, that if the plaintiff's theory of the facts was correct, he would be entitled to recover unless barred on the ground that his payment in March, 1878, was voluntary, and this assumes that the county, and not the plaintiff, must have borne the loss in the first instance, if it was in fact, as plaintiff alleges, chargeable to act of the county treasurer.

The defense is two-fold. First, the treasurer did account for all the bonds received from plaintiff, and second, the payment made by plaintiff was voluntary, and can not be made the basis of a recovery.

It is objected that the court erred in excluding from the jury a certain written statement made by Bayle, the county treasurer, to plaintiff as chairman, etc. This statement was in the form of a memorandum, merely showing the amount of new bonds received by Bayle and the amount of old ones by him turned over to the county clerk. It was made while Bayle was still in office, and though not signed or sealed by him, was made to plaintiff as chairman of the board, and during the process of exchanging the new for the old bonds and was in reference to that matter. It seems to have been of some importance in connection with other evidence offered by the plaintiff.

It is also urged that the court erred in excluding from the jury certain evidence of the plaintiff in reference to the receipts given by Bayle to the county clerk, covering the $301,000 of bonds which it is conceded were received by Bayle. These two assignments of error may be considered together, and for convenience we will examine them merely in their inverse order.

With reference to the receipts it may be stated that according to the plaintiff's version, they were passed over to him by the county clerk, and held by the plaintiff as his vouchers until the said conference with the finance committee in December, 1877, when they were returned to Bayle, as the amounts they called for were admitted as correct and audited, and they never afterward were in the plaintiff's possession.

In his testimony the plaintiff made frequent reference to these receipts, by way of explaining the transaction, and to make his narrative connected and intelligible this was unavoidable. The defendant objected to these references at the time, and at the conclusion of the narrative moved the court to exclude from the jury “all the evidence of this witness, in reference to receipts and his having Bayle's receipts for the bonds.” The court sustained this motion, and it is urged in support of this ruling, that the receipts are the best evidence, and the facts shown by them can not be proved by oral testimony. The receipts referred to were those covering the $301,000 of bonds which, as already stated according to the theory of both sides, were in fact received by Bayle.

The rule requiring the production of the best evidence, or as it is sometimes termed, primary evidence, is usually applied in those cases which relate to the substitution of oral for written evidence, and they may be arranged in three classes, including in the first class those instruments which the law requires to be in writing; in the second, those contracts which the parties have put in writing, and in the third, all other writings, the...