Valleau v. Newton Cnty.

• Decision Date: 31 October 1880
• Citation: 72 Mo. 593
• Parties: VALLEAU, Plaintiff in Error, v. NEWTON COUNTY.
• Court: Missouri Supreme Court

72 Mo. 593

VALLEAU, Plaintiff in Error,

v.NEWTON COUNTY.

Supreme Court of Missouri.

October Term, 1880.

Error to Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

REVERSED

Nathan Bray and N. H. Dale for plaintiff in error.

The county is liable on the warrant, and it makes no difference that it is drawn on the internal improvement fund. She destroyed that fund by using it for her own benefit. There is no money of the fund to pay the warrant; the county got the benefit of both the jail and the fund, and she should now respond. Terry v. Milwaukee, 15 Wis. 490; Floyd Co. v. Day, 19 Ind. 450; Clark v. Des Moines, 19 Iowa 196; Lyell v. Supervisors, 6 McLean 446; Savage v. Supervisors, 10 Wis. 49; Paddock v. Symonds, 11 Barb. 117; International Bank v. Franklin Co., 65 Mo. 105.

C. W. Thrasher for defendant in error.

The holder of a county warrant payable out of a special o rticular fund, is not entitled to a general judgment against the county on such a warrant. State ex rel. v. Bollin ger Co. Ct., 48 Mo. 475; Pettis Co. v. Kingsbury, 17 Mo. 479; Kingsberry v. Pettis Co., 48 Mo. 207; Campbell v. Polk Co., 49 Mo. 214; State ex rel. v. Macon Co., 68 Mo. 29; Insane Hospital v. Higgins, 15 Ill. 185; Com. ex rel. v. Pittsburgh, 34 Pa. St. 496

NORTON, J.

This cause is here on writ of error, and the error assigned is the action of the circuit court of Newton county in sustaining a demurrer to the following petition: “Plaintiff, for amended petition herein, states that he is the only person who composed the late firm of Valleau & Jacobs, of the city of Cincinnati, Ohio; that he, under the firm name and style of Valleau & Jacobs, carried on the business of iron jail builders, and furnishing iron materials for jails; that on the 27th day of April, 1860, the defendant, by her agent, Henderson Jennings, and pursuant to authority granted said agent by defendant, contracted with plaintiff to furnish iron materials for building a jail at the town of Neosho, in Newton county, Missouri; that in pursuance of said contract plaintiff furnished said materials to defendant for said jail, which were by defendant accepted and placed in said jail; that the contract price for said materials and the putting of the same up in the jail was $4,654, to be paid for when the work was completed; that defendant paid plaintiff the sum of $989 on said contract to pay freight thereon, and on the 8th day of October, 1860, in fraud of plaintiff's rights, drew their warrant on the treasurer of said county in favor of plaintiff for the remainder of said contract price of said materials and work, to-wit: $3,666.25, payable out of the internal improvement fund of said county, and delivered said warrant to plaintiff; that on the 16th day of October, 1860, defendant paid on said warrant the sum of $268.25, and on the 15th day of November, 1860, the further sum of $236; that on the 18th day of November, 1860, said warrant was presented to the treasurer of said county for payment, and payment thereof was refused for the reason that there were no funds to pay the same; that afterward, on the 11th day of February, 1868, said warrant was again presented to said treasurer of said county for payment, and payment thereof refused for the reason that there were no funds to pay the same. Plaintiff further states that at the date of said contract with plaintiff and defendant there were $8,000 and more belonging to the internal improvement fund of said county; that thereafter $6,000 of said fund was, by the defendant, diverted from its lawful channel and purpose, for which said fund was created, in this: The defendant borrowed of said fund the sum of $6,000, which she has never paid back into said fund, nor any part thereof; that the remainder of said fund was entirely exhausted in payments on other warrants and on...