Reed v. Peper Tobacco Warehouse Co.
| Citation | 2 Mo.App. 82 |
| Parties | JOHN REED et al., Respondents, v. PEPER TOBACCO WAREHOUSE COMPANY, Appellant. |
| Decision Date | 25 April 1876 |
| Court | Missouri Court of Appeals |
1. An agreement whereby a corporation collecting the lawful fees due to certain officers is to retain part thereof, in consideration of forbearance of efforts to procure a repeal of the law by which the offices were created, is void.
2. If a corporation, collecting fees for tobacco inspectors, collect more than is allowed by law, and pay over the same, such over-payments cannot be set up as a counter-claim in a suit for fees collected and not paid over.
3. A counter-claim founded on quantum meruit, with a detailed account of items and separate charges, is not sustained by proof of a special contract fixing a lumping compensation for all the items together.
APPEAL from St. Louis Circuit Court.
Affirmed.A. M. Gardner, for appellant, cited: Wag. Stat. 726, sec. 30; 1 Pars. on Con. 19, 447; 1 Greenl. on Ev., secs. 10, 172; Dillon v. Chouteau, 7 Mo. 386; Armstrong v. Farrar, 8 Mo. 627; Hunt v. Robinson, 13 Mo. 82; Brown v. Lathrop, 4 Cow. 336; Barrock v. Austin, 21 Barb. 241; Howard v. Cobb, 3 Day, 309; Taylor v. Peck, 21 Gratt. 11; Tuttle v. Turner, 28 Tex. 759; Marks v. Bank of Missouri, 8 Mo. 316; Halsa v. Halsa, 8 Mo. 303; Mullanphy v. O'Reilly, 8 Mo. 675; 1 Pars. on Notes & Bills, 175; Frank v. Hough, 29 Ill. 145; Claflin v. McDonough, 33 Mo. 412; Lima Township v. Jenks, 20 Ind. 301; Miller v. Coates, 4 N. Y. (S. C.) 429; Knapp v. Hyde, 60 Barb. 80; Wolfe v. Marshall, 52 Mo. 167; 1 Story, secs. 491, 523, 524; Fisher v. Wilson, 18 Ind. 133; Shaw v. Barnhardt, 17 Ind. 183; Lewis v. McMillen, 41 Barb. 420; Wiggins v. Tudor, 23 Pick. 444; Brien v. Marquard, 17 Johns. 58.
Dryden & Dryden, Pope & McGinnis, for respondents, cited: Morris v. Barnes, Admr., 35 Mo. 415; Wag. Stat. 723, sec. 12; Claflin v. McDonough, 33 Mo. 412; Wolfe v. Marshall, 52 Mo. 167; Woodworth v. Burnett, 43 N. Y. 273; Merritt v. Milliard, 4 Keyes, 208; Holdemess v. Baker, 44 N. H. 414; Tennant v. Elliott, 1 B. & P. 3; Chitty on Con. (10th Am. ed.) 730; Daly v. Timon, 47 Mo. 516; Western Boatmen's Savings Assn. v. Kribben, 48 Mo. 37; Bishop v. Ransom, 39 Mo. 416; Long v. Towl, 41 Mo. 398; Morgner v. Kister, 42 Mo. 466; Hannibal & St. Jo. R. R. Co. v. Mahoney, 42 Mo. 467; Collins v. Saunders, 46 Mo. 389; Ancil v. Cape Girardeau, 48 Mo. 80.
Plaintiffs were tobacco inspectors from March 14, 1870, to March 25, 1871. Their official fees were, by arrangement, collected from the tobacco dealers by defendant, and paid over weekly. This suit was to recover a balance of $1,752.45, which, it was claimed, had been collected by defendant, in excess of the sums accounted for to plaintiffs. The answer admitted the collection by defendant of inspection and auction fees on 11,683 hogsheads of tobacco, amounting to $8,762.25, of which it had paid over to plaintiffs the sum of $7,632. It alleged that the fees allowed by law to plaintiffs amounted really to only $7,301.87; so that plaintiffs had received more than they were entitled to by $330.13. Defendants denied any and all indebtedness to plaintiffs, and set up a counter-claim for a balance of $1,200 on an itemized account. Among the items were: charges for office rent; for weighing hogsheads; for commission on collections, at 10 cents per hogshead; for amount paid to plaintiffs on 1,436 boxes of tobacco at 22 1-2 cents each; for auction fees; and for excess in payments over the fees which plaintiffs were lawfully entitled to receive. Plaintiffs replied, putting in issue the new matter contained in the answer, and specifically denying each item of the counter-claim.
The cause was sent to a referee for trial of all the issues.
The referee found and reported the facts to be substantially as follows: That, under the provisions of law in force prior to March 2, 1871, the plaintiffs were entitled to a fee of 75 cents for each hogshead of tobacco inspected. That on that day a new law went into effect, reducing the number of inspectors from three to one, and the fee to 25 cents per hogshead; that, during the whole period from March 14, 1870, to March 26, 1871, the defendant collected from the tobacco dealers the inspectors' fees, at 75 cents per hogshead; that, for some time prior to March 14, 1870, the plaintiffs Reed and Judd had been receiving from defendant the sum of 60 cents on each hogshead, instead of the 75 cents allowed them by law; that an agreement to this effect had been entered into, “solely upon the consideration and for the reason that the defendant suggested and threatened that the law under which they held their offices would be repealed by defendant's procurement,” unless said plaintiffs so agreed; that when plaintiff Mercadier became an inspector, on March 14, 1870, he positively refused his assent to the arrangement, although urged thereto by the same considerations which had influenced his co-inspectors, and “asserted and declared that, if he took said 60 cents, he should at some future time assert his claim to the balance due;” that defendant continued, nevertheless, to pay over to plaintiff, weekly, “upon the basis of 60 cents per hogshead inspected, and that, during all that time, the defendant collected from the owners of said tobacco, as inspection fees, the sum of 75 cents on each hogshead; that all of said tobacco was inspected at defendant's warehouse, and that the fees due plaintiffs were collected by defendant from the customers of said warehouse for the convenience of all parties concerned.” Upon the items of the counter-claims, the referee found all the issues for the plaintiffs.
The conclusions of law reached by the referee were, in effect, (1) that the agreement between plaintiffs and defendant, for a deduction from the fees of the former, was illegal and void; (2) that, as to the alleged payments by defendant to plaintiffs of fees...
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