Thrasher v. Greene County

• Decision Date: 23 June 1891
• Citation: 16 S.W. 955,105 Mo. 244
• Parties: THRASHER v. GREENE COUNTY.
• Court: Missouri Supreme Court

16 S.W. 955

105 Mo. 244

THRASHER v. GREENE COUNTY.

Supreme Court of Missouri, Division No. 2.

June 23, 1891.

ATTORNEY AND CLIENT — FALSE REPRESENTATIONS — EVIDENCE — INSTRUCTIONS.

Where, in a suit by an attorney against a county for services rendered the county, under a contract, defendant pleads that the contract was procured by fraudulent representation on the part of the attorney, but adduces no evidence to substantiate this plea, it is proper for the court to refuse instructions on the question of such fraudulent representation.

Appeal from circuit court, Greene county; C. V. BUCKLEY, Special Judge.

This suit is based upon a contract in writing between the law firm of Thrasher & Young and Greene county, made December 31, 1878, and a supplemental contract of July 15, 1880, both made by the county court of Greene county in behalf of the county, and entered of record. This action was originally begun in the county court of Greene county. That court refused to allow the fee for which the contract provided, and the causes were appealed to the circuit court of Greene county. That court rendered judgment in favor of the county, which was reversed by this court in Thrasher v. Greene Co., 87 Mo. 419. The county court had subscribed $400,000 on June 2, 1870, for stock in the Kansas City & Memphis Railroad, and afterwards, October 4, 1870, modified its order, so as to make the same a subscription to the Hannibal & St. Joseph Railroad, to aid in building said Kansas City & Memphis Railroad, and ordered bonds of the county issued to pay said subscription. $273,300 of these bonds were issued by the county. The contract recited that suits were about to be brought against the county on bonds and coupons issued to pay said subscription to the Hannibal & St. Joseph Railroad, and also suits to force the county court to issue bonds to pay the unissued subscription on balance of the stock subscribed by the Greene county court; and, believing it to be its duty to defend the county against such suits, it was ordered by the court that Thrasher & Young, a firm composed of Charles W. Thrasher and Henry C. Young-attorneys at law, be, and they were there, by, employed by said Greene county to assist the prosecuting attorney in defending said suits; and it was agreed the county would pay them $5,000, to be paid in semi-annual installments, the first payment to be made first Monday in January, 1879, and, in addition to said $5,000, the additional sum of 5 per cent. when any part of said subscription or bonds might be defeated. The court agreed to pay all necessary traveling expenses in going and returning from courts in attending to said suits, procuring testimony, etc. The modification of July 15, 1880, fully recognized and reaffirmed the contract, and only changed the same so that said fee should be paid in installments of $100 each, except, when the amount due at any time should be less than $100, then the amount due should be paid. By order of the court all the installments and suits for the same were consolidated into one action. The cause was tried before C. V. BUCKLEY, Esq., a special judge, Judge Hubbard having been of counsel. There were no formal pleadings, but we gather from the instructions asked by defendant that the county denied the power of the county court to make the contract sued on; that the suits brought under this contract were useless; and that the contract was procured by Col. Henry C. Young, one of the firm, by fraudulent representation. The cause was tried by a jury under the instructions of the court. The plaintiff H. C. Young has died since the action was commenced, and it has been continued in the name of Thrasher, the surviving partner.

On the trial the contract of December 31, 1878, and the supplemental contract of July 15, 1880, were read in evidence. It was stipulated also: "(1) That on the 4th day of October, A. D. 1870, the county court of Greene county, in the state of Missouri, by an order duly entered of record in said court, took and subscribed in the name of said Greene county, to the Hannibal and St. Joseph Railroad Company, four thousand shares of the stock of said company, of the denomination of one hundred dollars each to the share, amounting to four hundred thousand dollars, to aid in the building of a branch road which was to commence at Kansas City, in Jackson county, Missouri, to intersect thereat with the road theretofore called the `Kansas City and Cameron Railroad,' then a part of said Hannibal and St. Joseph Railroad; thence to be built through the counties of Cass and Jackson by the way of Springfield, in said county of Greene, and thence in a north-easterly direction to the state line, in the direction of Memphis, Tennessee; said road to be built under the authority of an act to incorporate the Kansas City, Galveston and Lake Superior Railroad Company, approved February 9, 1857, and the act amendatory thereof; and the act of March 21, 1868, to aid in the building of branch railroads in the state of Missouri, which said branch was called the `Kansas City and Memphis Railroad.' (2) That the bonds issued by the county court of said Greene county to pay part of the said subscription to the stock of said Hannibal and St. Joseph Railroad Company have been, and still are, held valid by the circuit court of the United States within and for the eastern division of the western district of Missouri, in which said Greene county is included, and that judgments on said bonds have been repeatedly rendered by said U. S. court against said county." Plaintiff also read in evidence a decree of the Greene circuit court of November 12, 1879, annulling the order of subscription of the county court to the capital stock of the Kansas & Memphis Railroad and Hannibal & St. Joseph Railroad. The various leases, assignments, and transfers of the road-bed and franchises and stock subscriptions of this branch road were also read in evidence. Also the decision of this court in State v. Greene Co., 54 Mo. 543, affirming the validity of the subscription of the county to the Hannibal & St. Joe. The defendant, to maintain the issue on its part, offered...