State ex rel. Spaulding v. Peterson
| Citation | 39 S.W. 453,142 Mo. 526 |
| Parties | The State ex rel. Spaulding v. Peterson et al., Appellants |
| Decision Date | 25 May 1897 |
| Court | United States State Supreme Court of Missouri |
Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.
Reversed and remanded.
J. W Collins and Lubke & Muench for appellants.
(1) This suit being brought for breaches of the condition of a bond, it was not necessary for appellants to plead the payments made by the constable Peterson to relator. Wheeler & Wilson Mfg. Co. v. Tinsley, 75 Mo. 458. (2) If it was necessary to plead the payments made by constable Peterson to relator on account of his fees, then it was error in the circuit court to refuse to allow appellants leave to amend their answer, so as to set up such payments and make their answers conform to the evidence. They asked this in their exceptions to the referee's report, and before said report had been confirmed, or final judgment had been rendered. McMurray v. Martin, 26 Mo.App. 438; House v. Duncan, 50 Mo. 453; (3) The referee and the circuit court erred in not applying the payments of $ 1,787.25, made by constable Peterson to the relator, on account of his fees toward payment of the $ 2,113.38 of fees which the referee found in favor of relator upon six hundred and eighty-six cases, so as to make the balance of fees coming to relator $ 326.13. And the court and referee erred in diverting and applying $ 900 of the moneys paid by the constable to pay fees in three hundred cases not sued for by relator and taken out of the account book of the constable by the referee. (4) This is a common law action upon a bond, and appellants are not liable for the penalty of one hundred per cent interest, which is only allowed in special cases brought before justices of the peace for small amounts. The circuit court has no original jurisdiction in cases where this penalty is allowed. R. S. 1889, sec. 6320. (5) Relator waived the one hundred per cent interest, if he was ever entitled to the same, by the course of his dealing with the constable. He gave the constable credit and time to pay, and made with him settlements and received from him payments on account from time to time -- weekly and at longer intervals. Big. on Estop. [5 Ed.] 660; Hill v. Blackwelder, 113 Ill. 291; Ins. Co. v. Eggleston, 96 U.S. 573; Ins. Co. v. Norton, 96 U.S. 234; Ins. Co. v. Desler, 106 U.S. 30; Froelich v. Ins. Co., 47 Mo. 406; Ins. Co. v. Wolff, 95 U.S. 326; 16 Am. and Eng. Ency. of Law, Penalties, p. 270; Voris v. Renshaw, 49 Ill. 426. (6) The arrangement between the constable and relator whereby credit was given, and time for the payment of relator's fees extended was at variance with and essentially changed the terms of the bond without the consent of the sureties and operated to release them. Schuster v. Weis, 114 Mo. 158; State v. McGonigle, 101 Mo. 353; Bank v. Traube, 6 Mo.App. 221; Burge on Suretyship, 214. (7) The court and referee both erred in failing to make separate findings upon the various breaches of the bond, and erred in failing to specify the particular breaches upon which the findings were based. And the court erred in entering judgment for a lump sum. This point was well saved by the motion in arrest of judgment. Clark v. Phillips, 99 Mo. 550; Caruth v. Walter, 91 Mo. 484; Kenard v. Peck, 19 Mo.App. 342; State ex rel. v. Dulle, 45 Mo. 270; Maney v. Kennett, 19 Mo. 551; Clark v. Railroad, 36 Mo. 215; Pitz v. Fuge, 41 Mo. 405.
Thomas J. Rowe for respondent.
(1) Payment is an affirmative defense, and must be pleaded to give defendants the right to introduce evidence which tends to prove payment. Kersey v. Garton, 77 Mo. 465; Bliss on Code Pl., sec. 357, and note 1; 2 Chitty, Pl. 443; McKyring v. Bull, 16 N.Y. 297. (2) Defendants can not, after case has been tried and determined by the trier of the facts, amend their answer and thereby create new issues which were not made during the trial. Garton v. Canada, 39 Mo. 357. (3) Estoppel in pais can not be proved under a general denial, but is new matter, and the facts constituting the estoppel must be alleged in the answer. Pomeroy on Remed. and Remedial Rights by Civil Action, sec. 712; Bliss on Code Pl., sec. 364; Bray v. Marshall, 75 Mo. 327. (4) Waiver is an affirmative defense and can not be considered under a general denial. Bliss, Code Pl., sec. 339; McCullough v. Ins. Co., 113 Mo. 606. (5) There is no evidence in this case upon which to base a defense of estoppel or waiver. Again, waiver is a question of intention and a fact to be determined by the triers of fact. Ehrlich v. Ins. Co., 88 Mo. 249. (6) The relator is entitled to interest at the rate of one hundred per centum per annum from February 17, 1891, to date of judgment herein as found by the referee. R. S. 1889, secs. 6320, 6324, 6325; Ransom v. Cobb, 67 Mo. 375; Rose v. Cobb, 64 Mo. 464. (7) This court will not, on appeal, review the findings of the referee if they are supported by any evidence. In an action at law the referee's findings are conclusive as to the facts. Lingenfelder v. Wainwright Brewing Co., 103 Mo. 578; Howard Co. v. Butler, 119 Mo. 397; Berthold v. O'Hara, 121 Mo. 88; Vogt v. Butler, 105 Mo. 479. (8) The petition does not contain one thousand, six hundred and seventy counts, but it does contain five thousand and ten alleged breaches of the condition of the bond sued on, and the referee made a separate, specific and distinct finding on each alleged breach of said bond, so that the court could know how the issues were found, and on which of the breaches the damages were assessed, and how much on each one.
OPINION
In Banc.
Relator Spaulding was a justice of the peace in the city of St. Louis from November 8, 1888, to December 1, 1890, during which time defendant Peterson was constable of the same district. As constable said defendant at the beginning of his term gave a bond in the sum of $ 5,000, with the other defendants as securities. The action is by relator, upon said bond, to recover the full amount of the penalty thereof. The amended petition, upon which the case was tried, contains over one thousand, six hundred counts, and each count charges three separate breaches of the bond. The second of these is that defendant, as constable, collected the fees and costs coming to relator as justice of the peace, and refused to pay the same over to him, and that payment was demanded December 1, 1890. The other two breaches relate to a failure to return and falsely returning executions. There was no evidence in support of these. Each count covers particular case in which fees were taxed in favor of relator. Interest is demanded at the rate of one hundred per cent per annum. The answer, after admitting the execution of the bond, denies each other allegation of the petition and each count thereof. The case was referred to H. N. Crane, who took an account and made report. By his report the referee found, in the alternative, that defendant had collected fees due to relator, under one theory, in the sum of $ 1,928.68, and on another theory, in the sum of $ 1,226.13. Interest was calculated at one hundred per cent per annum from February 17, 1891, which, under either finding, would make the damages exceed $ 5,000, the penalty of the bond. Damages were therefore assessed at $ 5,000. Exceptions to the report were filed by defendants, and overruled by the court. Judgment was entered in favor of relator, and defendants appealed.
In proof that defendant collected the fees as charged in numerous counts of the petition, plaintiff introduced in evidence five written statements furnished him by defendant, which give in detail the style of the cases and the amount of plaintiff's fees collected in each. The aggregate amount shown by the statements and found by the referee is $ 2,113.38. Plaintiff admitted that $ 184.70 of this amount had been paid him by one of defendant's deputies in satisfaction of the cost of certain cases counted upon. For this amount defendant was given credit. Plaintiff testified that the costs in none of the other cases specified in the statements had been paid him. Defendants offered in evidence eight checks made by the constable, payable to relator, dated along from April 30, 1890, to September 25, 1890, aggregating $ 1,304.35, which had been paid by the bank. They also offered evidence tending to prove that relator received money from a deputy from May 21 to November 15, 1890, aggregating $ 482.90. The constable and his deputy testified that these payments were made on account of the fees specified in the statements furnished plaintiff. The checks themselves show that they were paid on account. In making up his report the referee excluded all this evidence, on the ground that payment had not been pleaded. The ruling of the referee was sustained by the court on exceptions thereto, and is the first error assigned by appellants.
1. The Missouri code requires any new matter constituting a defense to be pleaded. Payment is a fact ordinarily not required to be negatived in the petition, and in such case is new matter and, to be made available as a defense, must be pleaded. In such case proof of prior indebtedness is prima facie proof of liability. A general denial does not raise the issue of payment in such cases. But in cases in which non-payment is a material fact necessary to constitute plaintiff's cause of action, it must be alleged in the petition and proved as a part of plaintiff's case, and defendant can controvert it, under a general denial, by proof that payment was made. The rule in respect to when facts are to be pleaded as new matter, which has received the approval of this court, is this: "Whenever a defendant intends to rest his...
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