State ex rel. Dunklin County v. Blakemore
| Decision Date | 16 September 1918 |
| Citation | 205 S.W. 626,275 Mo. 695 |
| Parties | THE STATE ex rel. DUNKLIN COUNTY v. O. C. BLAKEMORE et al., Appellants |
| Court | Missouri Supreme Court |
Appeal from Dunklin Circuit Court. -- Hon. Frank Kelly, Judge.
Affirmed.
Fort & Zimmerman, Ely, Pankey & Ely and Jones & Jones for appellants.
(1) The court erred in overruling appellants' separate motion for new trial and appellants' separate motion in arrest of judgment, after sustaining separate motion for new trial and separate motion in arrest of judgment of appellant's co-defendants, Langdon Jones and Byron Jones, as there can only be one final judgment in a cause disposing of all parties. Sec. 2079, R. S. 1909; Crow v. Crow, 124 Mo.App. 125; Miller v. Bryden, 34 Mo.App. 608; Eichelmann v. Weiss, 7 Mo.App. 89; Holborn v Naughton, 60 Mo.App. 105; Bremen Bank v Umrath, 55 Mo.App. 49; State ex rel. v Canterbury, 124 Mo.App. 246; Hughey v. Eyssell, 167 Mo.App. 564; State ex rel. v. C. & A. Railroad, 265 Mo. 716; Star Bottling Co. v. Exposition Co., 240 Mo. 639; Mann v. Doerr, 222 Mo. 10; 23 Cyc. 816; Mahoon v. Colment, 51 Miss. 60; Crews v. Lackman, 67 Mo. 619. (2) The court erred in giving plaintiff's instruction (a) because it authorized a recovery on the bond sued on for a shortage in drainage district funds which are not covered by the bond sued on. Sec. 5605, R. S. 1909; State ex rel. Maries Co. v. Johnson, 55 Mo. 82; City of Harrisonville v. Porter, 76 Mo. 360; State ex rel. Martin v. Harbridge, 43 Mo.App. 18. (b) Because said instruction authorized a recovery of interest from January 29, 1909, when there was no evidence of a demand made on the sureties prior to the institution of this suit on April 15, 1911. McDonald v. Loewen, 145 Mo.App. 59; Burgess v. Cave, 52 Mo. 45; Benton v. Craig, 2 Mo. 198; 5 Cyc. 767. (3) There was no evidence of any order made by the county court for the institution of this suit and no evidence that the funds other than those covered by the bond sued on received the money actually turned over by Blakemore to his successor, or that the funds covered by the bond sued on suffered the loss of the shortage. Sec. 3781, R. S. 1909; State ex rel. v. Forrest, 177 Mo.App. 251; Blades v. Hawkins, 133 Mo.App. 337; Sanderson v. Pike County, 195 Mo. 604; Manpin v. Franklin County, 67 Mo. 329; Dennison v. St. Louis County, 33 Mo. 171; Barnett v. Kemp, 258 Mo. 159. Said instruction assumed a fact not proven, to-wit, that the county had authorized the bringing of this suit; and was in effect, directing a verdict for plaintiff and was a comment on the evidence. Sanderson v. Pike County, 195 Mo. 605; State ex rel. v. Morrison, 244 Mo. 211; Scheurer v. Rubber Co., 227 Mo. 357; Muncey v. Bevier, 124 Mo.App. 15; Crow v. Railroad, 212 Mo. 610; Barnett v. Kemp, 258 Mo. 159; Richardson v. Richardson, 166 Mo.App. 164. The doctrine of application of payments does not apply where the party attempting to invoke the doctrine is only acting in a fiduciary capacity for the benefit of others and does not own the several outstanding accounts in his own right. In re Switzer, 201 Mo. 88; State ex rel. v. Elliott, 157 Mo. 617; State ex rel. v. Branch, 151 Mo. 637. The responsibility of these sureties arises from their bond; not from what the county court might have done or not have done. Todd v. Boone County, 8 Mo. 437; Draffen v. City of Boonville, 8 Mo. 395. Application must be made before suit brought. Shortridge v. Pardee, 2 Mo.App. 366; Ponlun v. Collier, 18 Mo.App. 607; United States v. Kirkpatrick, 9 Wheat (U.S.), 724; Johnson v. Thomas, 77 Ala. 369; Lazarus v. Freidheim, 51 Ark. 378; Fairchild v. Holly, 10 Conn. 184; Applegate v. Koons, 74 Ind. 248; Robinson v. Doolittle, 12 Vt. 249. (4) No estoppel against defendants was pleaded, and there was no evidence introduced warranting the invocation of the doctrine of estoppel. Osborn v. Court of Honor, 152 Mo.App. 661; Loving Co. v. Hesperian Cattle Co., 176 Mo. 352; Chance v. Jennings, 159 Mo. 558; Throckmorton v. Pence, 121 Mo. 60; Blodgett v. Perry, 97 Mo. 273; Barnett v. Kemp, 258 Mo. 158. (5) The court erred in excluding testimony offered by defendants of the previous good reputation for honesty and fair dealing of O. C. Blakemore. State v. Wilcox, 179 S.W. 479.
George Smith, Jas. A. Bradley, J. P. Tribble, C. M. Edwards and Lee B. Ewing for respondent.
There is no merit in appellants' attack on the judgment. There was a judgment against appellants for the amount of the jury's verdict. As to Langdon Jones and Byron Jones, the court sustained their motion for a new trial, then sustained their demurrer and rendered judgment in their favor against plaintiff. The rights of all the parties to the litigation were settled by the decree. It was final. Sec. 2090, R. S. 1909; Rock Island Implm't. Co. v. Trust Co., 168 Mo. 256; Leslie v. Rhea, 9 Mo. 172; Rogers v. Gasnell, 51 Mo. 466. Even if the judgment were erroneous as to Langdon Jones and Byron Jones, it was not void, and this court would be authorized to correct the error and enter final judgment here. State ex rel. v. Tate, 109 Mo. 265; Carpenter v. St. Joseph, 263 Mo. 712; Patterson v. Yancey, 97 Mo.App. 698. (1) This obligation of the bond was broad enough to, and did, include the receiving and disbursement of drainage district funds. It was a part of the duties of the county treasurer, as such treasurer, to receive and disburse the drainage funds. R. S. 1909, secs. 5599, 5603, 5604, 5622, 5634; Beer v. Wolf, 116 Mo. 184; State ex rel. v. Tittman, 134 Mo. 171; State v. Curtis, 67 Mo.App. 431; Martin v. Whiter, 128 Mo.App. 125; Calhoun v. Gray, 150 Mo.App. 600; Murphy v. Carlin, 113 Mo. 120; Good v. St. Louis, 113 Mo. 270; Webb v. Insurance Co., 134 Mo.App. 580; State v. Sappington, 68 Mo. 454. (2) Interest was recoverable upon the shortage of Blakemore at least from the time he went out of office, January 29, 1909. The law imposed the duty on him and his sureties to make settlement at that time. The bond in suit is their written contract to do this. No demand was necessary to be made upon the sureties in order to entitle the respondent to recover interest. Interest was recoverable from date of conversion. Sec. 3771, R. S. 1909; Sec. 7179, R. S. 1909; Clark County v. Hagman, 142 Mo. 430; State ex rel. v. Sandusky, 47 Mo. 381; McPhillips v. McGrath, 117 Ala. 549; 22 Cyc. 1543, 1544, 1551; Hazlett v. Holt County, 51 Neb. 716. (3) In the absence of any directions from Blakemore as to the particular funds to be credited with his payment to his successor, the county had the right to make the application to the payment and the discharge of his indebtedness, to any fund it saw fit. There was no evidence in this case that of the particular money paid over by Blakemore enough did not belong to the school fund to discharge his obligations to that fund. State v. Smith, 26 Mo. 266; 37 Cyc. 1221; Pratt's Appeal, 41 Conn. 191; Speck v. Comm., 3 Watts (Pa.), 324; Sandwich v. Fish, 2 Gray (Mass.), 298; Grafton v. Reed, 34 W.Va. 72; Readfield v. Shaver, 50 Me. 36, 79 Am. Dec. 592. (4) The bringing of this suit on the particular bond was an election by the county to apply the payment made in January, 1909, to the discharge of his indebtedness on all other bonds. Haynes v. Waite, 14 Cal. 446; Starrell v. Barber, 20 Me. 457; Bobs v. Stickney, 36 Ala. 482; Mayor of Alexandera v. Patten, 4 Cranch. 317. (5) In the court below, no question was raised that this suit was not instituted and prosecuted by Dunklin County, by its duly constituted and qualified officers. Nor was any question raised by appellants as to the county's right to bring this suit. Therefore, appellants will not be heard to assert any such contention here. State ex rel. v. Sappington, 68 Mo. 456; Walker v. Owen, 79 Mo. 567; Mechanic's Bank v. Gilpin, 105 Mo. 21. (6) The criticism that no estopped was raised by the pleadings is without merit. It is only necessary to plead an estoppel when it is the basis of the suit. A party is never deprived of the benefit of an estoppel where it could not be pleaded, or where it arises out of a matter which is not the foundation of the suit. Long v. Lackawana Coal Co., 233 Mo. 738; Tyler v. Hall, 106 Mo. 313; Thomas v. Smith, 51 Mo.App. 610; Covell v. Western Union Tel. Co., 164 Mo.App. 630; Saginaw Coal Co. v. Connelly, 146 Mich. 395; Hayes v. Va. Mut. Protective Assn., 76 Va. 225. (7) Even if it was necessary to plead an estoppel, still if evidence tending to establish the estoppel is admitted without objection, necessity of pleading it is waived. Capital Lumber Co. v. Barth, 81 P. 995; Davis v. Davis, 26 Cal. 23; Weinstein v. National Bank, 69 Tex. 38; Hanson v. Buckner, 4 Dana (Ky.), 255; Standard Sanitary Co. v. Arrott, 135 F. 756. (8) By mingling moneys arising from funds covered by different bonds, and keeping all in one common account, so that it was impossible to tell to what fund the money abstracted by him belonged, Blakemore committed a wrong, and he and his sureties are estopped to take advantage of same. Broom's Legal Maxims (8 Ed.), 234, 235; Argill v. Sarpy, 1 Mo. 720; Frank v. Caruthers, 108 Mo. 569; Western Construction Co. v. Stone Co., 80 N.E. 856; Taylor v. State to Use, 11 L. R. A. 852; N. Y. Mutual Ins. Co. v. Armstrong, 117 U.S. 591; Van Kirk v. Addler, 111 Ala. 104. (9) An act of the principal which estops him to set up a defense personal to himself estops the sureties on his bond from setting up the defense. Henry County v. Salmon, 201 Mo. 167; McCabs v. Rainey, 32 Ind. 309; Pattersons' Appeal, 48 Penn. St. 345; Boone County v. Jones, 12 N.W. 995; Seaver v. Young, 145 Ill. 253, 48 Ill.App. 419.
This is an appeal from a judgment in a suit against the treasurer of Dunklin County and the sureties on his...
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