Womack v. Callaway County

• Decision Date: 13 March 1942
• Docket Number: No. 37824.,37824.
• Citation: 159 S.W.2d 630
• Parties: WOMACK v. CALLAWAY COUNTY.
• Court: Missouri Supreme Court

159 S.W.2d 630

WOMACK v. CALLAWAY COUNTY.

No. 37824.

Supreme Court of Missouri, Division No. 2.

March 13, 1942.

Appeal from Circuit Court, Audrain County; Frank Hollingsworth, Judge.

Action by James Womack against Callaway County, Missouri, to recover for money had and received because of alleged fraud of county in obtaining the money. From an adverse judgment, the plaintiff appeals.

Judgment affirmed.

D. M. Cuthbertson, of Fulton, for appellant.

T. A. Faucett, of Fulton, for respondent.

BARRETT, Commissioner.

The trial court sustained a demurrer to James Womack's petition against Callaway County for money had and received.

The petition alleges that on March 1, 1920, the County Court of Callaway County loaned Silas and Madie Booth $4,500 of the capital school fund secured by a deed of trust on 204 acres of land. The recorded deed of trust recited that Nowlin Womack and N. A. Womack had executed a bond, as sureties for the loan §§ 10376-10389, R.S.Mo.1939, Mo.Stat.Ann. §§ 9243-9256, pp. 7098-7104. The petition alleges this recital in the recorded deed of trust was for the purpose of deceiving the plaintiff and others into believing that Nowlin and N. A. Womack were legally bound to pay the loan in the event of a default by the Booths. It is then stated that on September 22, 1926, after the Booths were in default in their payments, the county in order to persuade the plaintiff, James Womack, to pay or obligate himself to assume the responsibility of his brothers, N. A. and Nowlin Womack, on the school fund bond and with the intent to deceive and defraud plaintiff "falsely represented to him, the said James Womack, that his brothers, Nowlin Womack and N. A. Womack, had signed and executed to the defendant county their bonds in the amount of $4,500.00" to secure the Booth loan. It is charged that the County Court represented to the plaintiff that unless he assumed his brothers' indebtedness and accepted a deed to the land the county would immediately file suit against his brothers for the payment of the loan; "that the plaintiff, James Womack, then and there at that time asked the officers of the defendant aforesaid, to-wit, James E. Moore and E. C. Holman, if he could see the bonds his brothers had signed, but said officers and judges aforesaid refused to produce said instruments for the inspection by the plaintiff, saying in avoidance of doing so, that all bonds and papers in their possession were the property of the county and that he could not see them, thereby diverting this plaintiff from insisting upon his legal right to inspect said instruments if they had any, and this plaintiff believing the statements of the court to be true and having confidence in their integrity, refrained from further insisting upon said papers being produced for his inspection and examination."

The plaintiff says he believed the representations of the county and its agents and thought his brothers legally bound to pay the loan and, realizing they "were eighty years of age and had not long to live and that he as their sole survivor and heir to their property would be eventually obligated to pay said indebtedness if they were so obligated as represented, entered into an oral agreement with the said officers and agents of the defendant county whereby he agreed to assume whatever obligation his brothers * * * owed to said county by reason of said bonds purported to be then held by the * * * county and then and there accepted a deed to the farm of Silas Booth." As a result, from December 31, 1926, to January 14, 1935, he paid the county the total sum of $3,311.86 which he now seeks to recover.

The plaintiff charges the county's officers knew the representations were false and his brothers had never signed a bond or obligated themselves to pay the Booth loan and "that plaintiff did not learn of this fraud so perpetrated upon him as aforesaid until January 1937, after he had paid out all the aforesaid sums of money." On February 4, 1939, he refused to make further payments. The loan was foreclosed and the land sold for $1,556.

Assuming, under the circumstances alleged and for the sake of argument, that an action for money had and received will lie against a county for money obtained or received by reason of fraud (United States Rubber Products Co. v. Batesburg, 183 S.C. 49, 190 S.E. 120, 110 A.L.R. 153; Johnson County Savings Bank v. Creston, 212 Iowa 929, 231 N.W. 705, 237 N.W. 507, 84 A.L.R. 936; 7 A.L.R. 353; McCormick v. City of Niles, 81 Ohio St. 246, 90 N.E. 803, 27 L.R.A.,N.S., 1117; Jersey City Supply Co. v. Jersey City, 71 N.J.L. 631, 60 A. 381, 2 Ann.Cas. 509; Butts County v. Jackson Banking Co., 129 Ga. 801, 60 S.E. 149, 15 L.R.A.,N.S., 567, 121 Am.St.Rep. 244; 38 Am.Jur., § 520, p. 200; Wolcott v. Lawrence County, 26 Mo. 272; Carter v. Reynolds County, 315 Mo. 1233, 288 S.W. 48; Hardwicke v. Wymore, 208 Mo.App. 414, 235 S.W. 171; 2 Dillon, Municipal Corporations, §§ 780, 793) and that the allegations with respect to duress—threatening to sue his brothers—are sufficient (Mississippi Valley Trust Co. v. Begley, 298 Mo. 684, 252 S.W. 76; Wells v. Adams 88 Mo.App. 215; American Brewing Co. v. City of St. Louis, 187 Mo. 367, 86 S.W. 129; Fout v. Giraldin, 64 Mo.App. 165; 17 C.J.S., Contracts, §§ 168-179) does the plaintiff's petition state a cause of action?

Obviously, the alleged duress and fraud having been practiced and accomplished as to the plaintiff on September 22, 1926, and not being discovered until January, 1937, suit being instituted on August 22, 1940, his cause of action was barred by the statutes of limitation, §§ 1012-1014, R.S. Mo.1939, Mo.St.Ann., §§ 860-862, pp. 1136-1143; Stark v. Zehnder, 204 Mo. 442, 102 S.W. 992, unless his petition contain allegations exempting him from the operation of the statute. Assuming, as we have suggested, that his petition meets all other requirements with respect to stating a cause of action, does it contain sufficient allegations to exempt him from the operation of the statutes of limitation?

The plaintiff alleges that he did not discover he had been defrauded until January, 1937. He does not state how he happened to make the discovery or what the circumstances revealing the fraud were. Consequently, we have no way of knowing whether or not he had exercised due diligence to discover that he had been wronged. Not even in the vaguest of generalities does he allege any diligence in discovering it. The petition alleges that his two brothers were alive at the time he took title to the land and began paying the notes which he was induced to do by reason of the false representations his brothers had signed as sureties the bond protecting the school loan. From all that appears he could have asked them whether or not they had signed the Booth bond as sureties. When he desired to see the bond to determine whether or not they had signed it he must have had some doubt about it, at least he was skeptical enough to want to see with his own eyes the signatures and the bond. That the court declined to show him the bond was a circumstance in itself sufficient to arouse the curiosity of even the most credulous, at least to the extent of causing him to make some inquiry of his brothers. On the face of it his cause of action is barred by the statutes of limitation unless by appropriate allegation he bring himself within the exceptions...