Thrasher v. Greene County

• Decision Date: 23 June 1891
• Citation: 16 S.W. 955,105 Mo. 244
• Parties: Thrasher v. Greene County, Appellant
• Court: Missouri Supreme Court

16 S.W. 955

105 Mo. 244

Thrasher v. Greene County, Appellant

Supreme Court of Missouri, Second Division

June 23, 1891

Appeal from Greene Circuit Court. -- C. V. Buckley, Esq., 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 cause was 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 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 subscriptions 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 thereby 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 five per cent., when any part of said subscriptions 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 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., as 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 representations. The cause was tried by the 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:

First. That on the fourth 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 & St. Joseph Railroad Company, four thousand shares of the stock of said company of the denomination of $ 100 each to the share amounting to $ 400,000, 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 & Cameron railroad, then a part of said Hannibal & 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 southeasterly 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 & 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 & Memphis railroad.

Second. That the bonds issued by the county court of said Greene county to pay part of the said subscription to the stock of the said Hannibal & 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 interested, and that judgments on said bonds have been repeatedly rendered by said United States 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 roadbed and franchises and stock subscriptions of this branch road were also read in evidence. Also the decision of this court in State ex rel. v. Greene Co., 54 Mo. 543, affirming the validity of the subscription of the county to the Hannibal & St. Joe railroad.

The defendant, to maintain the issue on its part, offered the judgment of the circuit court of Greene county of date August 5, 1876, in case of State ex rel. Attorney General v. Greene Co., the county court of Greene county, Ralph Walker, Joseph T. Morton and M. J. Rountree, perpetually enjoining the county court from issuing, selling or disposing of sixty $ 1,000 bonds purporting to have been subscribed to the Hannibal & St. Joe railroad, to the introduction of which plaintiff objected, and the court sustained the objection and defendant excepted.

Defendant also offered the petition of the county in the suit to annul the subscription to the Memphis & Kansas City; the return of the sheriff of service; the answer of both the Hannibal & St. Joseph and Springfield & Western railroads, both disclaiming any interest in the subscription. The court excluded the petition, and defendant excepted.

Defendant also offered in evidence the decision of this court in State ex rel. Wilson v. Garroutte, 67 Mo. 445. Also the evidence of Judges Rountree, Dillard, Morton and Ex-County Clerk Van Bibber.

The court then instructed the jury to find the issues for the plaintiffs for the several installments with interest, to which defendant duly excepted.

The defendant then asked eleven instructions. They are as follows: "1. The court instructs the jury that, unless they find from the evidence that suits were about to be brought at the time the injunction proceedings were instituted by plaintiffs, they will find the issues for the defendant.

"2. The court instructs the jury that the contract offered in evidence did not authorize plaintiffs to bring suits which the interests of Greene county did not require to be brought and, if the jury believe from the evidence that the suit for which compensation is claimed by plaintiffs was unnecessary to be brought, they will find the issues for defendant.

"3. That the judgment of the circuit court against the Kansas City & Memphis Railroad Company is a nullity, and does not relieve said Greene county from any indebtedness due said Kansas City & Memphis Railroad Company at the time said judgment was rendered.

"4. The court instructs the jury that plaintiffs were only employed to bring suits necessary to be brought and the contract offered in evidence only bound the county to pay for services in bringing suits necessary to be brought, and if the jury find from the evidence that at the time the suit was brought by plaintiffs for which they now claim compensation there was no claim being made by anyone to such bonds or against the county, and no claim being made by any person known to the county, or the officials of the county, and that the issue of said bonds had been enjoined by the order and decree of this court which remained in full force, then in law there was no necessity for the bringing of said suits by plaintiffs, and you will find the issues for the defendant.

"5. That if you find from the evidence that in fact no suit or suits were brought or were about to be brought at the time said contract which was read in evidence was entered into, to compel the county to issue the $ 127,000 of unissued bonds, but the plaintiffs, with knowledge on their part that no such suit or suits were about to be brought, and that proceedings to resist the issuance of said bonds were useless and instituted for the purpose of making a fee or commission out of said county and without any substantial benefits to result to the county on account of said service, then there was no consideration to support said contracts, so far as the same provided a fee or commission for plaintiffs for enjoining the issuance of said unissued bonds, then you will find the issues for the defendant.

"6. That, if you find from the evidence that Henry C. Young, with the fraudulent intent of obtaining a fee or commission out of said county without any benefit to said county, did falsely represent to the county court that a suit or suits were about to be brought to compel the county court to issue the $ 127,000 of unissued bonds, when in fact no such suit or suits were...