Fremont County v. Warner

HUSTON, C. J. This action was brought upon a promissory note made by defendants to plaintiff. The ease was heard by the trial court upon the following stipulation of facts: “It is agreed that the facts herein involved are as follows: 1. That for the year 1895 and 1896 the defendant J. P. Warner was the duly elected, qualified, and acting sheriff of the plaintiff county. 2. That upon the expiration of his said term of office the plaintiff county made a claim against said defendant Warner for monej's amounting to over $1,000, which it was claimed said defendant had received as such officer, and liad not accounted for; that, upon the refusal of said defendant to pay the same, suit was instituted against said Warner, which said suit was pending in the district court of Fremont county at the date of execution and delivery of the note in question. 3. That there was at said time a dispute between plaintiff and said Warner as to how much, if anything, was due from said Warner to plaintiff, and the solvency and financial responsibility of said Warner and his bondsmen were in doubt. 4. That thereupon the attorneys for the respective parties, being authorized so to do, entered into a compromise settlement, by which it was agreed that there was due plaintiff the sum of $525, and said suit should be dismissed in consideration of the defendants agreeing to execute, and executing, an agreement to pay said sum at the time, and in the manner, and upon the conditions, stated and agreed upon in the note set out in the complaint. 5. That, pursuant to said agreement and settlement, defendants executed and delivered said note, and said suit was dismissed. 6. That no part of said note, either principal or interest, has been paid, except the sum of $133.50 paid January 16, 1899, and plaintiff is still the owner and 370 holder thereof. 7. That forty dollars is reasonable as attorney’s fee to be allowed herein, if plaintiff recovers in this action, and as a matter of law an attorney’s fee is allowable. 8. The question sought to be raised by this stipulation and the contention of defendant is that said note and transaction was and is ultra vires, and the same is therefore not binding, but void. 9. This stipulation may be adopted as the court’s finding of fact, and shall be a part of the record, on appeal from the judgment.” TJpon this stipulation of facts, judgment was rendered by the district court in favor of plaintiff, and against defendants, and from such judgment this appeal is taken. It is claimed by appellants, first, that the action of the hoard of commissioners in taking the note of the defendants, in settlement of the claim of the county, was ultra vires and void. Without passing upon this question, it is sufficient to say that the defendants were competent parties, and, having received the benefits of the contract, they are now estopped from setting up the defense of ultra vires. This rule is so well established, and is consonant with every principle of equity and common honesty, that it needs no citation of authority to support it. Judgment of the district court affirmed, with costs to respondent. Quarles and Sullivan, JJ., concur.