The State v. Wilson
| Decision Date | 06 June 1921 |
| Citation | 232 S.W. 140,288 Mo. 315 |
| Parties | THE STATE at the Relation and to the Use of SALINE COUNTY v. WILLIAM N. WILSON and EQUITABLE SURETY COMPANY, Appellants |
| Court | Missouri Supreme Court |
Appeal from Saline Circuit Court. -- Hon. Samuel Davis, Judge.
Affirmed.
Harvey & Bellamy for appellant.
(1) The Superintendent of the County Poor Farm had authority to sell the farm products and other articles of produce raised on said farm and also the livestock belonging thereto, and had authority also to purchase articles for the use of the poor or for the use or improvement of the farm, or the buildings thereon, and to expend moneys for farm labor and other work for services dones by his order or contact. R. S. 1919, sec 12212. By virtue of this authority, he sold said produce and live stock and paid out the moneys arising from the sale thereof, or retained the same as such sales were made for the items set out in his counterclaim, or set-off, which were for work done or materials furnished for said farm, and which were for things necessary, and useful for said farm and for the inmates of said poor-house, and were for labor, food freight on articles, disinfectant and other things actually consumed on said farm. All these expenditures are set out in detail in said defendant's counterclaim, and the evidence in the case shows that each item of this account was paid by Wilson and also for what purpose. (2) The defendant Wilson had a right in this suit (a) to have an accounting with the county court and (b) to be credited with the items of this counterclaim. (a) The plaintiff sues to recover of said Wilson moneys alleged to be due by him to the county from the sale of live stock and produce and avers in the petition "that although said defendant received said money as such Superintendent, yet he has failed and refused to account for the same or any portion therefor, or pay the same over to said county or to the treasurer of said county, but has appropriated the same to his own use." Plaintiff thus seeks to open the accounts of the defendant, and therefore said Wilson has the right to open his side of the account also. When one side of an account is opened, the account is opened for both parties to correct any omission or mistakes therein. 1 Corpus Juris, p. 722; Callaway County v. Henderson, 139 Mo. 521. (b) Sec. 12212, R. S. 1909, contemplates that, subject to his duty to make reports to the county court, the superintendent of the poor farm has full control of the farm and is made sole manager thereof, and has the right to sell and buy all necessaries for the farm by virtue of his office. No order of the county court is needed to empower him to sell produce or stock or to purchase necessaries. All these transactions, the statute says, are to be "by the superintendent or by his authority." He is the authorized agent of the county by virtue of his appointment and all expenditures made by him or under his authority should be paid by the county, if made in good faith and in the exercise of reasonable judgment. Harkreader v. Vernon County, 216 Mo. 693. The evidence shows that said Wilson retained a sufficient amount of money from the sales of said produce and live stock, for the purpose of covering and reimbursing himself for the amounts expended by him, as shown in detail in his counterclaim. It is true the statute requires that the superintendent keep a book account of all transactions, but the evidence shows that this was not done because of the change made by the county court, itself, but it nowhere appears in the statute that such failure to keep such a book deprives the defendant of his right to reimbursement for moneys which he, in the exercise of his authority, as such superintendent contracted and paid in good faith for supplies furnished and work done for the benefit of the county. Nor does the statute provide that the county may refuse to pay items of expenditure justly made, merely because the same were not presented at some particular term of the court. If these expenditures were made by him, he has the undoubted right to reimbursement, if honestly made, and nothing in the statute precludes, restricts or destroys this right. (3) The finding of the referee is not borne out by the evidence. In fact the undisputed evidence is to the contrary. The evidence nowhere shows that the county had furnished the defendant any money with which to pay the items set out in his counterclaim. Each and every item of the counterclaim is due and should be paid by the county to said Wilson, and the referee should have so found, and judgment should have been entered by the court in favor of the defendant on his counterclaim, and such counterclaim, being in excess of the claim allowed by the referee, judgment should have been entered for the defendant. (4) The Equitable Surety Company executed the bond sued on at the time of the appointment of defendant Wilson by the county court, as superintendent, in the year 1912, for one year, and it does not cover the periods of time alleged in the petition. The fact that said Wilson paid premiums to said Surety Company during the years 1913, 1914, 1915 and 1916, would seem to us not to extend said Surety Company's liability during said years, nor bind said Surety Company by way of estoppel, as estoppel is not pleaded. There is no proof against said Surety Company sufficient to show legal liability under the bond sued on.
Albert R. James for respondent.
(1) No objections or exceptions were filed to the report of the referee within four days after said report was filed and, therefore, this court cannot consider the exceptions made to such report. Sec. 1442, R. S. 1919; Reinecke v. Jod, 56 Mo. 386; Gaston v. Kellogg, 91 Mo. 109; Kansas City v. Forsee, 168 Mo.App. 217; Berry v. Rood, 209 Mo. 673; Maloney v. Mo. Pac. Ry. Co., 122 Mo. 106; Price v. Davis, 187 Mo.App. 10. (2) Defendant Wilson had no authority to dispose of property belonging to the county and appropriate it to any purpose whatever, but the money derived therefrom must be paid into the county treasury for the support of the poor. Sec. 12214, R. S. 1919. (3) Claims against the county must be filed with and allowed by the county court, and cannot be made as a counterclaim, as is attempted to be done by the defendant in this case. Sec. 9560, R. S. 1919. (4) The defendant Surety Company having executed the bond originally in 1912, and having accepted annually renewal premiums thereon from defendant Wilson, up to and including the first of March, 1916, is estopped from claiming that said bond was not in full force and effect during the four years, by accepting the annual renewal premiums thereon, and the county court being advised of such fact and that such renewal premium was a renewal of said bond for another year, the defendant, Surety Company, became bound each subsequent year to 1912 just the same as for the first year. Building & Loan Assn. v. Obert, 169 Mo. 507. (5) The finding of fact by the referee will not be disturbed on appeal, if supported by substantial evidence. Bissell v. Warde, 129 Mo. 439; Feeney v. Chapman, 89 Mo.App. 371; Citizens Bank v. Donnell 172 Mo. 384; Citizens Co. v. McDermott, 109 Mo.App. 306; Vogt v. Butler, 105 Mo. 479.
This is an action upon an official bond. March 25, 1912, defendant William N. Wilson, having been recently appointed as superintendent of the County Farm of Saline County, and being required to give a bond for his official conduct, gave the bond here involved, with his co-defendant, Equitable Surety Company, as surety thereon. The condition of the bond reads:
Wilson was re-appointed in the years 1913, 1914, and 1915, and paid the premium for the renewal of this bond for each of said years. This was done with the knowledge and consent of the County Court of Saline County. After the conclusion of his fourth year of service, and after his last monthly settlement with the county court, it was discovered that Wilson had sold certain property on the county farm, and had failed to account therefor, in any of his divers monthly reports, during his four years service. This suit followed. In the petition it is charged that Wilson sold from such farm, and failed to account therefor, the following property, viz.:
Dec. -- 1913, 200 bu. corn for
$ 200.00
May 6, -- 1914, 2 mules for
370.00
Dec. 1, -- 1914, 3 heifers, for
100.00
Sept. -- 1915, 5 heifers and bull for
210.00
Total
The petition further avers that in March, 1915, Wilson reported the sale of the mules at the sum of $ 155 and accounted for such sum of $ 155, and gives credit for such sum, leaving a charge against Wilson of $ 645. Judgment was asked for the penal sum of the bond ($ 2,000), to be satisfied by the payment of the amount found due the county.
Each defendant first filed separate answers in the nature of a general denial. Later the defendant Wilson filed an amended answer, in which he makes a number of admissions, and then proceeds thus:
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