State ex rel. Seely v. Huff

• Decision Date: 31 October 1876
• Citation: 63 Mo. 288
• Parties: STATE ex rel. F. A. SEELY, Plaintiff in Error, v. W. C. HUFF, CLERK OF BOARD OF EDUCATION, TOWNSHIP 86, ETC., Defendant in Error.
• Court: Missouri Supreme Court

63 Mo. 288

STATE ex rel. F. A. SEELY, Plaintiff in Error,
v.
W. C. HUFF, CLERK OF BOARD OF EDUCATION, TOWNSHIP 86, ETC., Defendant in Error.

Supreme Court of Missouri.

October Term, 1876.

Error to Vernon Circuit Court.

McAfee & Claycomb, with Clark & Gray, for Plaintiff in Error, cited: Wagn. Stat. p. 1372, § 1; p. 216, § 15; Story Prom. Notes, 6 ed. p. 30, § 26; p. 50, § 43; p. 51, § 44; Bayl. Bills, 5 ed. p. 22, § 6; Chit. Bills, 8 ed. ch. 5, pp. 158, 159, 180; Buller vs. Crips, 6 Mod. 29; Ryland vs. Brown, 2 Head [[[[[Tenn.], 270.

Scott & Stone, for Defendant in Error, cited: Looker vs. Davis, 47 Mo. 140; McGee vs. Larrimore, 50 Mo. 425; McClellan vs. Reynolds, 49 Mo. 312; 3 Kent Com. 11 ed. 92; 2 Whart. 233; Dyer vs. Covington, 19 Penn. 200; Raigauel vs. Ayliff, 16 Ark. 594; West vs. Foreman, 21 Ala. 400; Kinney vs. Lee, 10 Tex. 155.

SHERWOOD, Judge, delivered the opinion of the court.

This is a proceeding by mandamus, instituted under §§ 14 and 29 (pp. 1244, 1248, Wagn. Stat.), against the clerk of a township board of education, to compel a compliance with the duties those sections enjoin.

The basis of this procedure is an alleged school warrant in this form:

[63 Mo. 289] $77.00
July 1st, 1870,

Treasurer of Township No. 36, Range 29, County of Vernon, State of Missouri: Pay to W. A. Smith, or order, the sum of seventy-seven dollars, with ten per cent. interest from date until paid, for school merchandise furnished sub-district No. 1 of said township. W. A. Harris, District Clerk, Post office, Nevada City, Mo.

J. A. NEAFERS.

Smith indorsed in blank the above instrument to the company whose treasurer is the relator in the present proceedings.

The return to the alternative writ, among other things, alleged that there was an entire failure of consideration of the warrant referred to, that the “school merchandise” therein mentioned was never furnished, and that the promises of Smith to deliver the furniture contracted for, consisting of a chair, desk, maps, etc., were false and fraudulent, and made with the view and intent to cheat the local directors.

On the final hearing the failure of consideration was indisputably established.

The position taken here by relator that evidence was inadmissible to show lack of consideration is clearly untenable. This is apparent from this consideration: that it was not a negotiable instrument. The law respecting orders of the character under discussion, does not clothe them with any of the attributes of negotiability, nor allow...