State ex rel. Mississippi Cnty. v. Moore

• Decision Date: 31 October 1881
• Citation: 74 Mo. 413
• Parties: THE STATE ex rel. MISSISSIPPI COUNTY, Appellant, v. MOORE.
• Court: Missouri Supreme Court

74 Mo. 413

THE STATE ex rel. MISSISSIPPI COUNTY, Appellant,

v.MOORE.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Mississippi Circuit Court.--HON. D. L. HAWKINS, Judge.

REVERSED.

Smith & Krauthoff for appellant.

Upon principle and considerations of public policy, a custodian of public funds can only absolve himself and his sureties from liability by showing that he disbursed the same according to law, or by producing the same. 67 Mo. 395; 3 How. 578. If defendant's liability is tested by the same rule that determines that of a common carrier, and he is relieved when the funds are lost either by the act of God or of public enemies, yet thieves and robbers cannot be regarded as public enemies. Story on Bailm., (9 Ed.) § 526; Angell on Carriers, § 200; Hutch. on Carriers, §§ 204, 205; Coggs v. Bernard, 2 L'd Raym. 909, 918; Porcher v. R. R. Co., 14 Rich. L. (S. C.) 181, 184. Whether or not a stated power is to be considered a public enemy, is a question of law, and unless the facts alleged show that it is such an enemy, the general charge to that effect will not make it so. Dritt v. Snodgrass, 66 Mo. 286, 296; Cook v. Putnam Co., 70 Mo. 668, 670. Courts will take judicial notice of the fact that the United States are not now at war with any other power, and that there are not within the limits of this State any public enemies within the legal meaning of the term. 1 Greenl. Ev., §§ 5, 6; 1 Whart. Ev., §§ 317, 338; McKenzie v. Hill, 51 Mo. 307; Douthitt v. Stinson, 63 Mo. 268, 274, U. S. v. Bales of Cotton, 10 Int. Rev. Rec. 52.

Glover & Shepley and Virgil M. Harris for respondents.

The answer was admitted to be true, and being true, was a defense to the action. We admit that when a party as made an express contract to do a particular thing which is lawful and possible, he is held to a literal performance, “unless performance is made impossible by the act of God or public enemies.” Bishop Cont., § 619. We rely on this principle to sustain the judgment. It proceeds upon the idea that a man can contract for nothing more than all that good faith and human strength can accomplish. When these fail from the act of God or public enemies, the contract is dissolved. State v. Townshend, 44 Mo. 356; U. S. v. Thomas, 15 Wall. 337; Supervisors v. Dorr, 25 Wend. 440.

The statute law required the treasurer to keep his office at the county seat, and the legal inference is, that the moneys of the county are to be kept there; also it is admitted by the record that it was impossible, from the overpowering force of public enemies, to perform this part of the contract. By this fact the contract which bound the treasurer to keep the money at the county seat, was dissolved. His duty afterward was that of bailee and trustee of the funds, and as such he was liable only for neglect of ordinary care and diligence. The case of State v. Powell, 67 Mo. 395, is not like this, and is no authority for such a case as this. This money was lost by public enemies. If J. S. Moore had kept it at the county seat, it would have been delivering the money into the hands of public enemies. It is agreed in the record, it was impossible so to keep it.

NORTON, J.

The State, on relation of Mississippi county, sued James S. Moore and Joseph C. Moore on a bond given by James S. Moore, as treasurer of said county, November 9th, 1878, in the penalty of $20,000. The bond was conditioned that James S. Moore should perform all the duties of said office. The petition alleged that the law required the treasurer, at the expiration of his term of office, to pay over to his successor all moneys in his custody, as treasurer, belonging to the plaintiff; and that said Moore received as treasurer, $2,996.90 during his term of office, belonging to plaintiff, and has failed and refuses to pay over to his successor said $2,996.90, and prayed judgment for said sum.

The defendants answered that at the time said moneys came to the possession of the treasurer, Mississippi county was not, nor for a long time thereafter, a safe place to keep such large sums of money; that it was then, and has been since, overrun with thieves and tramps, and overpowering public enemies, and the dwelling houses, and other buildings there were unfit and unsafe for keeping money; that the county court made no provision for an iron safe, with locks or other means of safe custody of county funds; that ordinary prudence required the treasurer to deposit said money in a safer place than could be found in said county; that no business man was willing to keep, or did keep, any large sum of money in said county; that in this emergency, the treasurer, after strict inquiry as to the safety and solvency and faithful management of the “North St. Louis Savings Association,” a bank in the city of St. Louis, deposited the money claimed in this suit in said bank--in which bank the said James S. Moore deposited his own funds, and the wealthiest and most prudent merchants deposited their funds--making said deposit in the name of James S. Moore, treasurer of Mississippi county; that said deposit was made with the knowledge and assent of, and without objection by, the Mississippi county court; that while said money remained in said bank it failed, and said money was lost after the utmost care of the treasurer, and by unavoidable misfortune. To this answer a replication was filed, putting in issue the facts alleged, but on the trial it was agreed that all the facts of and concerning the controversy were fully and correctly set out in the petition and answer. The court rendered judgment for defendants, and plaintiff brings the case here by appeal.

1. LOSS OF COUNTY FUNDS THROUGH BANK FAILURE: treasurer's liability.

The condition of the bond sued upon was that defendant,...