Walker v. Linn Cnty.

• Decision Date: 31 October 1880
• Citation: 72 Mo. 650
• Parties: WALKER v. LINN COUNTY, Appellant.
• Court: Missouri Supreme Court

72 Mo. 650

WALKER

v.LINN COUNTY, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Linn Circuit Court.--HON. G. D. BURGESS, Judge.

AFFIRMED.

Chas. A. Winslow, Geo. W. Easley and E. W. Smith for appellant.

Linn county never authorized the contract to be made. There was no previous order of record appointing Boardman. Dennison v. St. Louis Co., 33 Mo. 168; Maupin v. Franklin Co., 67 Mo. 327. The subsequent order cannot help out this defect. Johnson v. School District, 67 Mo. 319. The county court had no power to make the contract. Carroll v. St. Louis, 12 Mo. 444; Wolcott v. Lawrence Co., 26 Mo. 272; Reardon v. St. Louis Co., 36 Mo. 555; Maupin v. Franklin Co., 67 Mo. 327; Dixon v. Livingston Co., 70 Mo. 239.

H. Lander and Northcott & Bigger for respondent.

County courts, under the general powers given them by the statute over the property of the county, have a large discretion in cases where they are not expressly limited. Hannibal & St. Joseph R. R. Co. v. Marion Co., 36 Mo. 303; Wolcott v. Lawrence Co., 26 Mo. 275; Sparks v. Purdy, 11 Mo. 222; Boggs v. Caldwell Co., 28 Mo. 586; Reppy v. Jefferson Co., 47 Mo. 66. There is no prohibition against insurance of county buildings. In cases where the statute gives the power, and prescribes the manner of its exercise, such as in erecting public buildings, no departure from the prescribed mode will be allowed. Nor will any act or acts of ratification in such cases validate the contract. State ex rel. v. Clark Co., 41 Mo. 44; Wolcott v. Lawrence Co., 26 Mo. 272; Hannibal & St. Joseph R. R. Co. v. Marion Co., 36 Mo. 303. But in cases where the power is given and no definite mode prescribed for its exercise, the grant of power of itself implies the use of fit and proper means to accomplish the object. Hannibal & St. Joseph R. R. Co. v. Marion Co., 36 Mo. 304. And in this class of cases, if the act done or undertaken be within the power, the doctrine of ratification applies to aid defects or informalities in the manner of its exercise. Hannibal & St. Joseph R. R. Co. v. Marion Co., 36 Mo. 304; Crawshaw v. Rosebury, 7 Gray 374; Gasconade Co. v. Sanders, 49 Mo. 195; 1 Dillon on Munic. Corp., § 373. Ratification may be inferred from acquiescence after knowledge of the facts, or from acts inconsistent with any other supposition. 1 Dillon on Munic. Corp., § 383, and notes; Peterson v. The Mayor, 17 N. Y. 453, 454.

NORTON, J.

This is a suit instituted by plaintiff as assignee of the State Insurance Company on a contract of insurance alleged to have been made by the county of Linn with said company for insurance on the court house and personal property in the county offices. The answer denies the contract and also denies the authority of the county court to make such contract. On trial plaintiff obtained judgment, from which defendant has appealed. The errors assigned are, that the court received improper evidence and refused the instruction asked for by defendant.

The following is the evidence objected to: Carlos Boardman testified: I was presiding justice of the county court in August, 1869; made the application for the insurance; was authorized by the Linn county court to make the application. Plaintiff then read the application, as follows: “Application of Carlos Boardman, presiding justice of the county court of county of Linn, State of Missouri, for insurance against fire and lightning by the State Insurance Company, in the sum of $5,000, for the term of five years from the 3rd day of August, 1869, to-wit:” (Here follow the statement of the property to be insured, being the court house and office furniture, valued at $21,000, and all the other formal parts of such application.) It is signed, “C. Boardman, President, applicant County Court for Linn county, Missouri,” and dated July 28th, 1869. C. L. Dobson testified that, at the time the application was made, he was agent of the company at Linneus, and received the application from Boardman, and that the first installment was not paid at the time the insurance was made, but in November following.

Plaintiff, for the purpose of showing a ratification of the insurance contract, read the following order of the county court: “In the Linn county court, August term, August 2nd, 1869. Order in relation to insuring court house. Ordered that C. Boardman, presiding justice of the county court, sign the installment notes for the county to State Insurance Company, Hannibal, $450, payable in four equal annual installments from and after August 3rd, 1869, and also sign note to the company for first installmont to be paid as soon as money can be obtained for that purpose.” Plaintiff then read an order of the court, made November 15th, 1869, directing the treasurer to pay Robert H. Ware, as the assignee of the first installment note, the amount thereof, and ordering the clerk to issue a warrant therefor; also, an order made November 29th, 1870, directing the treasurer to pay Boardman, for the purpose of paying balance due on the court house, the balance in his hands belonging to the county bounty fund and enough out of the county expenditure fund to pay the balance due on the insurance. Plaintiff then read the policy of insurance issued on the application of Boardman to Linn county, and insuring on the usual terms and conditions, the court house and furniture as described in the application. Plaintiff also offered in evidence the premium note executed by Boardman, presiding justice of the county court, on behalf of the county, also a copy of the order appointing him assignee of the company, and the deed of the register in bankruptcy assigning to him the effects of the bankrupt.

The...