Williams v. Carroll County.

• Decision Date: 19 February 1902
• Citation: 66 S.W. 955,167 Mo. 9
• Parties: WILLIAMS v. CARROLL COUNTY.
• Court: Missouri Supreme Court

66 S.W. 955

167 Mo. 9

WILLIAMS v. CARROLL COUNTY.

Supreme Court of Missouri, Division No. 1.

February 19, 1902.

COUNTY SCHOOL FUND BOND — INTEREST — MISTAKE IN COMPUTATION — PETITION FOR RESTITUTION — NECESSITY OF ALLEGING FRAUD — SUFFICIENCY — DETERMINATION — MISTAKE OF LAW — PRESUMPTION — RIGHT TO COMPOUND INTEREST.

1. A petition against a county charged that plaintiff went to the county clerk to pay the amount due on his school fund bond, trusting to the clerk to calculate the interest, and that the clerk made a mistake in such calculation, and that plaintiff paid the same in the belief that it was correct. Held to aver a mistake against which he was entitled to relief.

2. A petition, predicating plaintiff's right of recovery solely on a mistake in the calculation of interest by the payee, need not allege any actual fraud in the computation, and that the overpayment was induced thereby.

3. In determining the sufficiency of a petition to recover an overpayment of interest on a bond, alleged to have been induced by a mistake of the payee, on whom plaintiff relied to properly compute the same, it cannot be assumed that the overpayment arose from a pure mistake of law, due to a misconstruction of the bond by plaintiff, because the amount paid by him shows a computation on such a misconstruction.

4. A bond provided for the payment of the principal, with interest from date, and "all interest" not punctually paid was to bear interest at the same rate as the principal. Held, that the term "all interest," as used therein, applied solely to defaulted interest on the principal, and compounding interest on the defaulted interest was unauthorized.

Appeal from circuit court, Carroll county; W. W. Rucker, Judge.

Action by J. S. Williams against Carroll county. From a judgment for defendant, plaintiff appeals. Reversed.

This is an action to recover $156.36, alleged to have been erroneously and mistakenly paid by plaintiff to defendant in paying off a certain school fund bond. On January 3, 1887, plaintiff borrowed from the school fund of Carroll county the sum of $2,000, and the bond in question was given therefor. Interest was paid to February 1, 1890, and on the 7th day of February, 1894, there was paid on account of interest the further sum of $160. Afterwards default occurred in the payment of interest. This controversy arises over the mistake of the county clerk in computing the amount due on the bond. Omitting caption, the petition is as follows: "Plaintiff for his cause of action states that on the 3d day of January, 1887, he borrowed from the defendant county the sum of two thousand ($2,000.00) dollars, and executed therefor his bond, which is in words and figures, as follows, to wit: `County School Fund. $2,000.00. Twelve months after date we promise to pay to Carroll county, to the use of the county school fund of said county, the sum of two thousand dollars, for value received, with interest at the rate of eight per cent. per annum from date till paid, and payable on the first day of February in each year, unless otherwise ordered by the Carroll county court. And it is agreed that in case of default in the payment of the interest, or failure of the principal in this bond to give additional security when thereto lawfully required, both the principal sum and interest shall become due and payable forthwith, and that all interest not punctually paid shall bear interest at the same rate as the principal. Witness our hands and seals this 3d day of January, A. D. 1887. J. S. Williams. [Seal.] J. W. Edmonds. [Seal.] Bradley A. Wilmot. [Seal.]' Plaintiff further says: That at the same time and on the same date, and as security for said bond, he executed a `county mortgage' on lands belonging to him in Carroll county, Missouri, described as follows, to wit: The north half of the south half of section thirteen (13), township fifty-five (55), range twenty-three (23); said mortgage being recorded in Book 29, at page 434, of the records in the office of the recorder of deeds, in Carroll county, Missouri; said bond and mortgage being hereto attached, and marked Exhibits `A' and `B,' respectively. That said bond and mortgage fully set forth and express all of the conditions and terms upon which said sum of $2,000 was borrowed. That the indorsements on the back of said bond are as follows, to wit: `Feb. 8, 1888, by interest on within to amt., $160.00. March 4, '89, by interest on within to Feb'y 1, 1889, $175.00. Nov. 6, 1890, by interest on within to Feb'y 1, 1890, $170.00. Feb'y 7, 1894, by interest on within to amt., $160.00.' That said indorsements correctly represent the dates and amounts of all payments made by plaintiff on said bond, up to the 6th day of October, 1897. That on said date, October 6, 1897, plaintiff, intending to pay off and discharge said bond in full, paid to defendant thereon the sum of thirty-three hundred and ninety-eight and 14/100 ($3,398.14) dollars. That said sum so paid was by the clerk of the county court of said defendant county computed to be the amount due on said bond at said date of payment, and that plaintiff, relying on said computation and believing it to be correct, and without himself making any computation, paid said sum of $3,398.14. That said computation was erroneous, and not correct. That there was not due on said bond at that time $3,398.14. That said sum was paid to defendant by mistake, and under the mistaken belief that...