Wolf v. Humboldt County

• Decision Date: 02 May 1913
• Docket Number: 2,028.
• Parties: WOLF v. HUMBOLDT COUNTY.
• Court: Nevada Supreme Court

131 P. 964

36 Nev. 26

WOLF v. HUMBOLDT COUNTY.

No. 2,028.

Supreme Court of Nevada

May 2, 1913

Appeal from District Court, Humboldt County; L. N. French, Judge.

Action by Phillip H. Wolf against Humboldt County. From a judgment for plaintiff, defendant appeals. Affirmed.

Salter & Robins, of Winnemucca, for appellant.

Mack Green, Brown & Heer, of Reno, for respondent.

McCARRAN J.

This is an action wherein Phillip H. Wolf, the constable of Lake township, Lovelock, Humboldt county, brought suit in the district court in and for Humboldt county to recover on certain claims for services rendered by him, acting as constable of said township. His claims had been presented to the board of county commissioners of Humboldt county, and were by said board disallowed in part. The case was tried in the district court of Humboldt county, with Hon. L. N French, judge of the Eighth judicial district for Churchill county, presiding. Judgment in the lower court was rendered in favor of the plaintiff, and a lengthy decision in writing was filed by the learned judge. No motion for a new trial was made, and the case comes to this court on appeal from the judgment alone.

In their opening brief counsel for appellant submits but one contention for this court to determine, namely: "As respondent accepted and was paid the allowance on 10 claims made by the county commissioners, is he entitled to sue for the amounts so disallowed?"

The picture of the 10 claims in question is here given:

Demand.

	Allowed For.	Difference.
	$ 222 55	$ 202 55	$ 20 00
	34 95	32 25	2 70
	192 40	54 20	138 00
	210 45	166 90	43 55
	437 40	427 40	10 00
	334 15	318 55	15 60
	168 80	166 00	2 80
	454 35	28 80	425 55
	241 05	139 65	101 40
	431 35	250 00	181 35
	------------	-----------	-------
Total .....	$2,727 45	$1,786 50	$940 95

Appellant claims that the judgment entered below should be reduced in the sum of $940.95, for the reason that respondent's acceptance of the part allowed constituted accord and satisfaction, and he is barred from recovering the balance. It is a well-settled rule that on an appeal from a judgment only the reviewing court will presume that the evidence was sufficient to support the conclusions of the trial court. The only thing left for this court to decide is: Did the acts of respondent in accepting the part allowed by the commissioners on the various claims constitute a bar to his suit for that part rejected by the commissioners?

In order to support a plea of accord and satisfaction, it must clearly appear from the evidence that there was in fact and in reality a meeting of the minds in accord and in satisfaction. The conclusion of accord and satisfaction should not be supported by mythical or theoretical reasoning; nor should a matter so important rest upon any finespun argument. Proof of accord and satisfaction should not depend upon the construction that might be placed upon a statute; nor should it be maintained as a pitfall into which the unwary may fall by some act wholly unintended to express his acquiescence in a transaction, wherein his lack of experience or lack of knowledge of technical law might debar him from a right of action--might deprive him of his "day in court."

The general trend of modern decisions indicates that the courts are determined to establish a principle that he who avails himself of a plea of accord and satisfaction must bear the burden of proof; he must establish clearly that there was a meeting of the minds of the parties, accompanied by a sufficient consideration.

Appellant cites the case of Wapello County v. Sinnaman, reported in 1 G. Greene (Iowa) 413, Fulton v. Monona County, 47 Iowa, 622, and Brick v. Plymouth County, 63 Iowa, 462, 19 N.W. 304. These cases were referred to and commented upon in a later case decided by the Supreme Court of Iowa, entitled Wilson v. Palo Alto County, reported in 65 Iowa, 19, 21 N.W. 175. In this latter case the court very properly said with reference to the former decisions: "The general principle on which these cases were decided, and, as we think, upon which all others involving like states of facts must be decided, is this: Unless the party has accepted the amount allowed on his claim, under such circumstances as that a settlement or compromise of matters in dispute between the parties can be inferred therefrom, he is not precluded thereby from maintaining his action for the portion disallowed. If the board of supervisors, in passing upon a claim against the county, should allow a certain per cent. of the whole amount claimed and refuse to allow the remainder thereof, they would thereby say to the claimant, in effect, that his claim, as made by him, was regarded as unjust or invalid, but that they were willing to pay the amount allowed in settlement or compromise of it; and if, with full knowledge of the action which had been taken on his claim, the claimant should, without objection, accept the amount allowed, this should be regarded as an acceptance by him of the terms of compromise offered, and he ought to be precluded from maintaining an action for the portion disallowed. But if the claim should include some items about which there was no dispute between the parties, and others that were denied, and the former should be allowed and the latter rejected, we see no reason for holding that his acceptance of the amount which was not at all disputed should bar his right of action for the items which were denied and disallowed."

We think that this expresses the true trend of modern law and puts a correct interpretation upon the whole principle, and we would go even further, as does the Colorado Court of Appeals (Rio Grande County v. Hobkirk, 13 Colo. App. 180, 56 P. 993), and say that proof of accord and acceptance in satisfaction must be clear.

Independent of any controlling statutory provisions modifying the law of accord and satisfaction, so far as claims against counties are concerned, there is nothing in this case that amounts in law to accord and satisfaction. We recognize that it is within the power of the Legislature to control the manner of action upon claims against counties. Many of the decisions that have been cited to this court are based upon peculiar statutory provisions of the states from which the decisions are cited.

The section of our general county government act applicable to this case is as follows: "No person shall sue a county in any case for any demand, unless he or she shall first...