Yankton Cnty. v. Rossteuscher

• Decision Date: 31 January 1875
• Citation: 1 Dak. 125,46 N.W. 575
• Parties: Yankton County v. Rossteuscher.
• Court: South Dakota Supreme Court

46 N.W. 575

1 Dak. 125

Yankton County

v.Rossteuscher.¹

Supreme Court of the Territory of Dakota.

Jan. Term, 1875.

Appeal from district court, Bon Homme county.Bartlett Tripp and S. L. Spink, for appellant. Moody & Cramer, for appellee.

BARNES, J.

This action was commenced in Yankton county, and by change of venue removed to Bon Homme county, and there tried. The jury found for the plaintiff. Various exceptions were taken in the court below upon the admission of testimony and refusal of the court to instruct the jury as requested by defendant. This case is now in this court for review. It is alleged in plaintiff's complaint that in June, 1865, the defendant was the register of deeds of Yankton county, and clerk of the board of county commissioners of said county; that while acting as such clerk he caused to be issued by said board a county warrant or order for the sum of $98, payable to one A. F. Hayward; that the defendant procured said order to be issued for the pretended purpose of paying that sum to the firm of Mills & Co. for books theretofore purchased of said firm for Yankton county; that defendant did indorse said county order for the purpose of paying said Mills & Co., but in fact presented the same to the treasurer of said county, and received the amount thereof of said county, for which sum so received from said county by said defendant this action is brought by said county against said defendant. The defendant specifically denies every material allegation of complaint. This cause was tried at Bon Homme, June 10, 1873, Barnes, J., presiding. Upon the trial of this cause, the plaintiff offered in evidence a letter in the words and figures following: “Yankton, D. T., 3d May, 1865. Messrs. Mills & Co.-Gents: There has been considerable talk among the county and other officials with regard to the new books. (Mark me) the fault is only against the county clerk, (who gave me the order,) and not with your prices or the quality of the books. But the books are altogether too expensive for our county. And several have been to me and advised me to countermand the balance of the order, and leave it in the hands of the clerk, which I will now do; but will do my best to get him to do the fair thing with you. I am, respectfully, yours in haste, A. F. Hayward.” To the reception of this letter the defendant objected. The court below overruled the objection, and allowed the letter to be read in evidence. To this ruling the defendant then and there excepted. The fact that, at the time the $98 order was issued to Hayward to pay Mills & Co., defendant was clerk of the board of county commissioners is admitted upon the trial in the court below. So, too, the fact that the witness Hayward, the writer of the foregoing letter, was the duly-appointed deputy-clerk of said board of county commissioners, by appointment from the defendant, is fully established. The fact, too, that defendant knew that the $98 order was drawn in favor of Hayward to pay for the books purchased of Mills & Co. is fully and clearly established. The theory of the plaintiff is this: that the defendant purchased the books for which this $98 order was given, of Mills & Co., for Yankton county, and that the order was drawn in...