Whalen v. Buchanan County
| Decision Date | 17 December 1937 |
| Docket Number | No. 34884.,34884. |
| Parties | WILLIAM C. WHALEN v. BUCHANAN COUNTY, Appellant. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. — Hon. Ferd J. Frankenhoff, Judge.
AFFIRMED.
Maurice Hoffman and C.W. Meyer for appellant.
(1) The admission of plaintiff's Exhibit 1 was error for the reason that the proper way to show the county court's action is the record of the court. Maupin v. Franklin County, 67 Mo. 327; Riley v. Pettis County, 96 Mo. 318; Morrow v. Pike County, 189 Mo. 620; Carter v. Reynolds County, 315 Mo. 1233; Sec. 1826, R.S. 1929. (2) Respondent was a Class A deputy from March, 1932, to December, 1932, inclusive, he received and accepted pay as such and therefore has no cause of action, and is estopped from claiming anything more. Secs. 11856, 11857, R.S. 1929; Galbreath v. Moberly, 80 Mo. 484.
W.B. Duncan for respondent.
(1) Concerning appellant's complaint of error in the introduction of plaintiff's Exhibit 1. Counsel for appellant complains of the introduction of Exhibit 1 because it was not a record of the county court. This exhibit was not offered by respondent to show any action of the county court, but merely to corroborate the testimony of witness, Oscar Lollis, the then county clerk. (2) Concerning appellant's contention respondent was a Class A deputy during the ten months in issue. The county clerk is entitled to appoint a chief deputy county clerk at an annual salary of $1920. Sec. 11856, R.S. 1929. This is the first time that the doctrine of estoppel has appeared in this case. Appellant did not plead estoppel as a defense in its answer nor did it plead facts which constitute estoppel or any of the three elements of this doctrine. Berry v. Cobb, 20 S.W. (2d) 296. Estoppel is an affirmative defense and must be specifically pleaded. Ambruster v. Ambruster, 31 S.W. (2d) 28; Scanlon v. Kansas City, 28 S.W. (2d) 84; Neville v. D'Oench, 24 S.W. (2d) 491; Blackiston v. Russell, 44 S.W. (2d) 22; Mo. Cattle Loan Co. v. Great South Life Ins. Co., 52 S.W. (2d) 1. Further than that estoppel would not be a defense to respondent's cause of action for the reason its position was not altered by action of respondent, as the law is declared by this court in the following cases: State ex rel. Moss v. Hamilton, 260 S.W. 466; State ex rel. Summers v. Hamilton, 279 S.W. 33.
Action to recover $200, balance claimed to be due respondent, plaintiff below, for salary as chief deputy county clerk for ten months, March to December, 1932, inclusive. The case was one at law, tried to the court without a jury. No instructions were asked or given. The judgment was for plaintiff for $200, $20 per month for the ten months involved, and defendant appealed.
The facts are practically undisputed. From January 1, 1931, and during the time here involved, Oscar F. Lollis was County Clerk of Buchanan County. As of date, January 1, 1931, he submitted in writing to the county court his appointment of deputies, which, with the "O.K." of the presiding judge of the court, reads:
The above-quoted instrument was plaintiff's Exhibit 1 (to be hereafter mentioned) and was admitted in evidence over defendant's objection.
On January 10, 1931, the county court made the following record entry upon its records:
No other record entry relative to Mr. Whalen appears upon the county court's records, nor is any other or further appointment of Whalen by the county clerk shown. He continued to act as chief deputy, discharging all the duties of that office, until Lollis resigned as county clerk in May, 1934. Lollis never changed his appointment or status as chief clerk to "any other class of deputy."
For fourteen months, January 1, 1931 to March 1, 1932, Whalen was paid $160 per month at the statutory rate of $1920 per year. (The statute will later be referred to.) For the next ten months, March to December, 1932, inclusive, the time here involved, he was paid $140 per month, the statutory salary of a Class A deputy. (It does not appear how much he was paid after December, 1932.) In the "vouchers," made out by the county clerk, for the ten months involved the amount to be paid Whalen is stated as $140. To illustrate:
"Payroll Co. Clerk & Mar. 1932.
Oscar F. Lollis ................. $291.67
W.C. Whalen ..................... 140.00
Thos. B. Llafet ................. 100.00
Mont Finch ...................... 100.00
Mary Ferneau .................... 100.00
J.A. Timberlake ................. 100.00
Jack Curtin ..................... 100.00
"OK Oscar F. Lollis, Co. Clk.
"OK Mar. 31, 1932, $931.67
"E.P. Maupin, County Auditor"
In four of those vouchers, those for April, October, November and December, 1932, Whalen's name is followed, respectively, by the designation, "Class A Dep.," "Class A," "Class A Deputy" and "Class A Deputy," followed by the amount to be paid, $140. In the other six only his name appears, followed by said stated amount of $140. In some of those ten vouchers other deputies are listed to receive $100 per month, in others $125 per month. Where listed to receive $125, sometimes said other deputies are referred to as Class B deputies (whereas they were appointed as Class A deputies), sometimes their classification is not mentioned.
Both Lollis and plaintiff testified that the reduction of Whalen's salary was made over the protest of both. Plaintiff said he was never notified of any change reducing him from chief deputy to Class A deputy, — "just a reduction of salary" made over his protest. Lollis said that the reduction was made over his protest, that he had never reduced Whalen from chief deputy to Class A deputy, and that the only reason he had made out said ten vouchers as he did, calling for $140 to Whalen instead of $160, was that
In this connection we add there was no evidence as to the "budget set-up by the County Court" or as to the amount provided for the County Clerk's office, except the inferential reference thereto in the above quoted excerpt from Lollis' testimony.
[1] On this record we are of opinion that the judgment of the circuit court is right. At the time here involved there was in force, applying to Buchanan County, Section 11856, Revised Statutes 1929 (Mo. Stat. Ann., p. 7050), reading as follows:
The next section, 11857, provides that the collector of revenue, clerk of the circuit court, assessor, recorder of deeds, county treasurer, "and any other county officer," shall each be entitled "to such a number of deputies and assistants, to be appointed by said county officer," as the county court may deem necessary, which deputies and assistants are to be divided into Classes A, B and C, defining each and fixing the salary of each. Class A deputies are therein defined as "Assistants or deputies" and their salaries fixed at $1680 per year. Lollis, in his testimony, explained the difference between the duties devolving upon and performed by a "chief deputy" and those of other deputies, showing that the duties of chief deputy were more responsible and onerous than those of Class A or other deputies. For some reason the County Clerk is not specifically mentioned in Section 11857, supra. But assuming for the purpose of the case that he is included in the general language "any other county officer," the statutory provisions referred to seem to make a distinction between the "chief deputy" provided for in Section 11856 and the deputies and assistants contemplated by Section 11857. Statutes relating to the same subject are to be construed together and, if possible, harmonized and effect given to all provisions. Section 11856 authorizes the county clerk, not the county court, to appoint a chief deputy and fixes his salary. Whalen was appointed chief deputy pursuant to that statute. While his original appointment read only for one year he continued to act thereunder and was recognized thereafter as holding...
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