Theis v. Bd. of Cnty. Com'Rs of Beaver Cnty.

• Decision Date: 05 October 1908
• Docket Number: Case Number: 2106 OK Ter
• Citation: 97 P. 973,1908 OK 201,22 Okla. 333
• Parties: THEIS v. BOARD OF COUNTY COM''RS OF BEAVER COUNTY.
• Court: Oklahoma Supreme Court

1908 OK 201

97 P. 973

22 Okla. 333

THEIS v. BOARD OF COUNTY COM''RS OF BEAVER COUNTY.

Case Number: 2106 OK Ter

Supreme Court of Oklahoma

Decided: October 5, 1908

Syllabus

¶0 1. COUNTIES--Bonds--Sale--Contract With Broker. By section 395, St. Okla., 1893, the power to negotiate the sale of county refunding bonds was conferred on the county treasurer exclusively, and the board of county commissioners of a county had no power to make a contract of employment with a broker to procure the sale of such bonds; and such a contract of employment entered into by the board of county commissioners was a void act, and the acts of the person so employed in pursuance of such contract created no liability against the county, however beneficial the services may have been to it.

2. LIMITATION OF ACTIONS--Statute--Retroactive Effect. A statute of limitation is never given a retroactive operation unless it appears by express provision or necessary implication that such was the legislative intent.

3. SAME--Set-Off and Counterclaim. That part of section 3, art. 7, c. 28, p. 328, Sess. Laws 1905, which provides that "such set-off or counterclaim shall not be barred by the statutes of limitations until the claim of the plaintiff is so barred," only affects set-offs or counterclaims existing at the time of its passage. It did not revive a set-off already barred by a former statute.

4. SAME. A cause of action barred by the statute of limitations cannot be pleaded as a set-off.

5. SAME--Pleading Exception. Where a party pleads an exception to toil the statute of limitations, a general denial puts him upon his proof as to such allegation.

Error from District Court, Woods County; John L. Pancoast, Judge.

Action by George Theis, Jr., against the board of county commissioners of Beaver county. Judgment for plaintiff, and defendant brings error. Modified and affirmed.

Francis C. Price and W. A. Ledbetter, for plaintiff in error.

R. H. Loofbourrow, County Atty., and Cowgill & Dunn, for defendant in error.

KANE, J.

¶1 This was an action brought by George Theis, Jr., against the board of county commissioners of Beaver county to recover on 35 warrants issued by said county in the aggregate sum of $ 3,166.84. The petition declares on each separate warrant, and is in the ordinary form. One lot of the warrants, 16 in number, aggregating $ 2,750, without interest, was issued July 7, 1893. The other lot of 19 warrants, aggregating the sum of $ 416.84, without interest, was issued in 1893 and 1894. As to the second lot there is no contention, they having been held good by the district court. The other lot, aggregating $ 2,750, was held to be absolutely void.

¶2 The part of defendant''s answer necessary to notice here is in words and figures as follows:

"Comes now the defendant, and for amended answer to the plaintiff''s petition filed herein: (1) Denies each and every material allegation in said plaintiff''s petition contained. (2) Answering further and referring specifically to the first, second, third, fourth, fifth, sixth, seventh, eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth, and sixteenth paragraphs of said plaintiff''s petition, defendants allege: (a) That the county warrants number 2,084, 2,078, 2,080, 2,079, 2, 077, 2,076, 2,075, 2,089, 2,081, 2,082, 2,083, 2,085, 2,088 2,087, 2,086 and 2,090, and which are described in said paragraphs of plaintiff''s petition are illegal and void for the reason that the board of county commissioners had no authority to make the allowance on which said warrants were issued; that said warrants were issued in compliance with the terms of a void contract made and entered into by and between the plaintiff herein and the board of county commissioners of said county and territory, a copy of which contract is hereto attached, made a part hereof, and marked ''Exhibit A.''

¶3 Exhibit A: ''Beaver, O. T. July 7th, 9 o''clock a. m. The board of county commissioners met in regular session with full hoard present, Com. Slaven in the chair. Now comes George Theis, Jr., of Ashland, Kan., and filed the following proposition which was accepted by the board: ''To the Honorable Board of County Commissioners, Beaver, Oklahoma Ter., July 7, 1893; For a commission of twenty-seven hundred and fifty dollars I will negotiate at par your county refunding bonds dated May 18th 1893, for $ 11,000, of series B and will also relinquish my claim for past services rendered. Geo. Theis, Jr. The above proposition of Geo. Theis, Jr., is accepted. H. B. Slaven, Chairman. W. O. Cochran, Member. F. J. Birdsall, Member. Attest: Dyke Ballinger, County Clerk."

¶4 The seventh paragraph of defendant''s answer consisted of a set-off whereby it prays judgment in the sum of $ 1,500 with interest from March 28, 1893, on account of certain county warrants which on the 28th day of November, 1892, were issued to the plaintiff, George Theis, Jr., by defendant. It is alleged that these warrants were issued to the plaintiff under a void contract and in violation of law, as a commission for negotiating $ 7,500 of its county bonds, and that the amount of said warrants was afterwards paid to plaintiff by said county. A copy of the proposition or contract under which it is claimed the plaintiff negotiated such county bonds, and for which he was paid said $ 1,500 in county warrants, is made a part of the answer, and is in words and figures as follows:

"Adjourned Session, Sept. 5th, 1892, term. The board of county commissioners met in adjourned session, with all members present, Mr. Birdsall presiding in the chair. Minutes of the last meeting were read and approved. Now comes Charles E. King, agent for George Theis, Jr., of Ashland, Kansas, and files the following bid for all remaining county bonds, to wit: ''To the Honorable Board of County Commissioners of Beaver County, O. T.: Dear Sirs: We will negotiate $ 7,000 of your county bonds for 20 per cent. commission and agree to pay par for your county warrants for one year from this date, provided the issue does not exceed $ 9,000. Yours respectfully, Geo. Theis, Jr., by Chas. E. King, Agent.'' On motion of Mr. Eubank, Mr. Theis'' proposition was accepted. Charles E. King, agent for Geo. Theis, Jr., and J. Blanchard, county attorney, were instructed to draw up the necessary contract."

¶5 The original answer in which this $ 1,500 counterclaim is pleaded was filed on the 1st day of March, 1893, more than five years after such warrants had been issued and paid; the answer being filed on the 13th day of October, 1899. Upon a demurrer being sustained to the paragraph of the answer pleading a set-off, the defendant amended the same by interlineation by adding the words, "that at the time this cause of action accrued and ever since the said plaintiff has been out of the territory"; the amendment being made to avoid the bar of the statute of limitations. To the answer of defendant the plaintiff filed his reply in words and figures as follows:

"First. That he denies each and every material allegation alleged in said amended answer and each count and paragraph thereof not hereinafter expressly admitted.

"Second. Said plaintiff for a separate reply to paragraph ''a'' of defendant''s second defense herein states: That on and prior to October 12, 1892, the financial condition of said Beaver county was such that it was unable to float its county warrants for current expenses except at a discount of about 50 cents on the dollar, and was compelled to and did issue its warrants for double the amount of the actual value and current value of all supplies purchased by said county, and for all services rendered for said county, except those fixed by statute. That at said time the legitimate current expenses of said county were in excess of all taxes collected and other sources of income, and the general condition of the finances of said county was such that investors would not purchase the warrants and obligations of said county at any price, and that, in order to preserve and administer the county government and purchase the necessary supplies for county officers and to pay the necessary current expenses of said county, it became necessary to make some arrangements for financial relief; and that, in order to carry on and administer the affairs of the county government of said Beaver county, an arrangement was made with this plaintiff whereby said county agreed, and through its commissioners ordered, that if plaintiff would take and pay cash at the rate of 95 cents on the dollar for 11 warrants issued by said county during the following year, except such as said county could care for, then said county would, at the expiration of said year, issue its refunding bonds in an amount equal to the warrants so taken up and paid for by plaintiff, dollar for dollar. And, in addition thereto, said county agreed with plaintiff to put said refunding bonds in his hands to be negotiated by him for said county at par, and to pay plaintiff for the sale and negotiation of said bonds, and for his services in putting said county on a cash basis, and for cashing its warrants for 95 cents on the dollar, the current value of which was only 50 cents on the dollar, and for other services theretofore rendered said county, including advice and counsel to said county, consulting and employing an attorney to prepare a form and arrange for the printing and delivery of said refunding bonds, and for the maintenance and establishing of an office in said county in which and through which plaintiff could take up, and did take up and pay for the warrants of said county from time to time during said year; that, pursuant to this arrangement, plaintiff took up and paid for the warrants of said county during said year at the rate of 95 cents on the dollar amounting in the aggregate to the amount of $ 11,000; that refunding bonds of said county were issued in said sum of $ 11,000 pursuant to said arrangement May 18, 1893; that defendant was

...