Wood v. City of Kansas City

• Decision Date: 26 March 1901
• Citation: 162 Mo. 303,62 S.W. 433
• Parties: WOOD v. CITY OF KANSAS CITY.
• Court: Missouri Supreme Court

62 S.W. 433

162 Mo. 303

WOOD v. CITY OF KANSAS CITY.

Supreme Court of Missouri, Division No. 2.

March 26, 1901.

NOTARIES — CLERK OF MUNICIPAL CORPORATION — FEES — ORDINANCES — RECOVERY OF FEES FROM CITY.

1. Plaintiff had been employed by defendant as an extra clerk in the treasurer's office, at a fixed compensation, and, as a notary public, he had taken a large number of acknowledgments for the city. Ordinance No. 3910, passed February 4, 1892, provided that no fees shall be received by the notary employed in the treasurer's office, except such as are turned into the city treasury. Rev. St. 1889, § 5001, fixes the fees which notaries shall be allowed for their services. Held, that the ordinance was invalid, as contravening the statute, and hence the plaintiff was entitled to recover from the city his fees for the services rendered as a notary during the time of his employment, which were collected and appropriated by the defendant.

2. A clerk in a municipal office is not estopped from claiming fees for services rendered as a notary public by having received his compensation in his employment as clerk.

3. In the absence of any agreement to the contrary, a city is not entitled to fees for services rendered by its employé as a notary public during the city's office hours.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by Frederick Wood against the city of Kansas City to recover notary fees collected by the defendant for the plaintiff's services. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

R. B. Middlebrook, for appellant. Chas. B. Adams, Wash Adams, and N. F. Heitman, for respondent.

BURGESS, J.

On the 19th day of April, 1892, plaintiff was employed by defendant city as an extra clerk in the office of the treasurer of the city, for which he received $3 per day. He continued in the service of the city until February, 1893, during which time he drew his salary regularly every month. During that time a great many city lots were sold for delinquent taxes, for which certificates of purchase and deeds had to be made, and acknowledgments thereto taken, which necessitated having a notary public in the treasurer's office for that purpose. Therefore, in order to provide for such an officer, defendant city on the 4th day of February, 1892, duly passed Ordinance No. 3910, the substance of which is that the salary of the clerk employed as notary public in the treasurer's office should be in full for his services and his fees in taking these acknowledgments, and to certificates pertaining to the duties of notary public. On June 17, 1892, plaintiff was duly appointed and commissioned notary public for Jackson county, Mo., for a term of four years, and while in the service of defendant city, and during regular business hours, he took 4,230 acknowledgments for her, which, at 50 cents each, amounted to the sum of $2,115.50, to recover which he prosecutes this suit. It does not appear that he lost any time from his work by reason of these certificates and acknowledgments. These fees never came into the hands of plaintiff, but were paid into the treasury of defendant city by the grantees named in the certificates of purchase and tax deeds. Plaintiff never made a demand on the city for these fees until March 15, 1893, when payment was refused. It was agreed between the parties "that the sum of $2,115.50 was collected by the city treasurer of defendant, paid into the general fund of defendant's treasury, and that all of said sum has been appropriated and used by defendant for its own use and benefit; that said sum represents the total amount of notary fees for acknowledgments taken by plaintiff while in the treasurer's office for certificates of purchase and tax deeds issued by defendant during the years 1892 and 1893. It is also admitted by defendant that said sum of $2,115.50 was demanded by plaintiff from said defendant on the 15th day of March, 1893, and that payment thereof was refused." No declarations of law were asked by plaintiff, but defendant asked the court to declare the law to be as follows: "(1) The court, sitting as a jury, declares the law to be that if the plaintiff was receiving a salary of $75 per month from Kansas City as an extra clerk in the city treasurer's office, which salary was to be compensation in full for his services as such clerk, and that on February 4, 1892, the common council of Kansas City passed an ordinance that no fees should be received by the notary public working in the treasurer's office, extra, such as are turned into the city treasury to the credit of the general fund of the city, and that all of the fees claimed by the plaintiff were for work done as a notary after the enactment of said ordinance, and that plaintiff knew of the existence of said ordinance when he took the acknowledgments to the deeds in question and did other notary work, then the plaintiff cannot recover in his action. (2) The court declares the law to be that a notary public may be estopped from claiming fees earned by him when it appears that he knew before he performed his official acts as a notary that no fees would be paid him, and that it was expected by the party for whom he performed the notary services that no pay should be...