County of Johnson v. Wood

A. F. Alexander, Special Judge. In September, 1851, the county of Johnson subscribed for one thousand shares, or $100,000, of the stock of the Pacific Railroad Company, to be paid for in six per cent, county bonds. The contract for subscription was modified in December, 1856, and the county court, in pursuance of the latter agreement, issued and deposited with the railroad company one hundred bonds of $1,000 each, bearing interest at seven per cent, and payable in equal instalments in five, six, seven, eight, and nine years. These bonds were to be sold by the railroad company, and as fast as they should be disposed of, a corresponding amount of «took was to be issued to the county, and those which should remain in the hands of the company unsold after the lapse of three years, were to be surrendered to the county and cancelled, and a corresponding amount of the stock of the original subscription annulled. It was, also, provided in this contract that the railroad company should issue to the county shares of stock corresponding in amount for any interest paid on bonds which should be eventually surrendered. The contract was again modified in 1860 by a new agreement, the effect of which was, among other things, to release the interest on all the bonds remaining unsold from July 1, 1861, to June, 1864, the railroad company having failed to complete the road to Knobnoster, in Johnson county, before the latter date. On May 17,1870, forty-seven of the bonds remained in the hands of the railroad company, which, by the terms of these agreements, were to be delivered up for cancellation, and the county court having repeatedly endeavored to obtain them, without success, sold the one thousand shares of stock originally subscribed, to the defendant, A. W. Ridings, for the nominal sum of $77,000, $47,000 of which, however, was to be paid by the delivery of the forty-seven bonds and to secure the restoration of which the defendant was constituted the agent of the county, and the bonds were soon afterwards obtained — 504 — and cancelled. On October 28, 1874, the defendant recovered of the Pacific Railroad Company the sum of $9,458.75, the value of interest stock, to which the plaintiff became entitled by the payment of $8,225 interest upon the bonds which had been surrendered. And to recover this sum of $9,458.75 with the interest thereon as money had and received to the use of the plaintiff, this action is brought. The defendant, in his answer, admits the recovery of the value of the interest stock from the Pacific Railroad Company, but claims title to the same by virtue of a. modified contract, subsequently made with the county court, which he claims more properly expressed the-terms of agreement between the parties and which, it is claimed, was made for the purpose of correcting a mistake or clerical error in the original contract. The replication is a general denial of these facts. Neither party claiming a jury, the cause was tried by the court, and the defendant, who was permitted to open, .introduced the following evidence: The modified contract pleaded in his answer, dated August 12, 1870, as shown by the record of the county court of Johnson county. The pleadings and judgment in a cause in. the circuit court of St. Louis county, Missouri, in which A. W. Ridings, as plaintiff, recovered the sum of $9,458.75 of the Pacific Railroad Company, as the defendant. The orders of the county court of Johnson county for the issue of warrants in payment of interest, on county bonds issued upon railroad subscriptions. These entries do not describe the bonds upon which the-Interest is paid. The report of George S. Grover upon the condition of the affairs of the county with the railroad company made in the year 1869 to the county court. This report shows that the records of the county court in respect to payments made upon the subscription of 1851, and an additional subscription made in 1853, were defective and incomplete, the entries having been, carelessly made, and that some of the books had been lost. — 505 — It does not show with certainty that any interest had been paid on the forty-seven bonds. The defendant then introduced in evidence the record of the original contract, preceded by a recital of his proposal to purchase all stock owned by the county. Also, the forty-seven bonds, with five coupons detached from each, and as a substitute for the évidence it was admitted that the stock of the Pacific Railroad Company in May, 1870, was worth sixty-two cents on the dollar, and in August, 1870, it was worth seventy cents on the dollar, and that A. W. Ridings had otherwise complied with his contracts with the county court. The deposition of I. H. B. Thornton, who had made the entries in the year 1870, as deputy clerk, was then read in evidence by the defendant, the statements of which are in substance: That the county sold and the defendant purchased all the stock in the Pacific Railroad Company, to which the county was entitled. That he knew the amount of interest which had been paid on the bonds from Grover’s report, which was in the possession of the court, and from the absence of the five coupons from each when they were cancelled. That the county court had sent its presiding justice and Wells H. Blodgett, an attorney, to . St. Louis to demand the restoration of the forty-seven bonds, and that they had been unsuccessful in their mission, and on their return had reported to the court that the charter of the railroad company prohibited the issue of stock for interest paid on the forty-seven bonds ; that nothing was said as to interest paid on the bonds in the negotiations with Ridings, and that the only purpose of the county court in making the contract of the twelfth of August, 1870, was to grant him further time in which to pay the purchase money. G. Will. Houts, who had been the presiding justice of the county court in the year 1870, was introduced as a witness on the part of the defendant, and testified in substance, that previous to the time of making the contracts — 506 — with the defendant, he had examined the records of the county court, and was aware of the existence and contents of the agreements made with the Pacific Railroad Company, and that he had gone to St. Louis to obtain the forty-seven bonds three times, without success, and was in doubt whether the county could obtain any stock from the company; that the proposition of the defendant was in writing, and was to purchase the stock of the county at seventy-seven cents on the dollar, or $77,000, $47,000 to be paid in railroad bonds, $3,000 in cash, and’ the balance in county warrants. In regard to the contract of August 12, 1870, the witness states: “There was no other motive for making the modified contract than that of extending the time of the payment agreed to be made by defendant, Ridings, in the May contract. We did not intend to convey any more stock than was conveyed by the May contract. When we made the May contract we were intending to sell all the stock that the county owned in the Pacific Railroad Company.” The defendant, A. W. Ridings, testified that the forty-seven bonds were delivered up and cancelled at the date of the modified contract; the clerk cancelled the bonds and the coupons were cancelled by himself, and the court permitted him to take the bonds after cancellation. Objections were interposed to the admission of all the evidence introduced by the defendant, and exceptions were saved by the plaintiff to the action of the court in overruling them. Wm. McMahan, who was then presiding justice of the county court, was introduced on the part of the plaintiff and testified that in a conversation between W. H. Brinker and Gf. Will. Houts, in the office of Brinker, at which the witness was present, Houts had said emphatically two or three times that if the county court had known that the interest on the forty-seven bonds had been paid, and had known that the county was entitled to stock for the interest, the court would not have — 507 — sold the stock to Ridings for the price mentioned in the contract. This fact had been denied by Houts in his testimony. The following declarations of law were asked by the plaintiff which the court refused : “1. The court declares the law to be that the contract of August 12, 1870, between the plaintiff and defendant, taken in connection with the contract of May 17, 1870, which is incorporated in and forms a part of said modified contract of August 12, 1870, is the only'evidence of the right, title, and authority of the defendant to have and retain the money in controversy, and that the parol evidence offered by defendant is incompetent and inadmissible to vary, enlarge, control, contradict, or explain the terms or legal effect of said contract, or to show the knowledge, understanding, or intention of the parties thereto at the time of making said contracts or prior thereto, but that the intention of the parties must be gathered from the contracts themselves. “2. That the modified' contract of August 12, 1870, must be construed in connection with the contract between the same parties, and in relation to the same subject matter of May 17, 1870, and that said contracts, nor either of them, vest any right, title, or authority in defendant to the money in controversy in this suit, and plaintiff must recover. “3. That it stands admitted, by the answer of defendant herein, that the contract of May 17, 1870, between- the plaintiff and defendant, did not convey any right or title to defendant to the money in controversy in this suit; that if the modified contract of August 12, 1870, was made without any new or different consideration moving from defendant to plaintiff than the consideration upon which that of May 17, 1870, was founded, although the said modified contract was made under the seals of the parties thereto, that the same is void and ineffective to convey any title to the money in contro — 508 — versy in this suit to defendant, and the plaintiff must recover. “4. If the court should find the issues for the-plaintiff, it must find that plaintiff is entitled to interest-on the amount so found for plaintiff, at the rate of six per cent, per annum, from the date of the judgment recovered by defendant against the Pacific Railroad Company, introduced in evidence in this cause.” At the instance of the defendant, the court made the following declaration of law: “The court declares the law to be that upon the pleadings and evidence in this cause the finding must be for the defendant.” The judgment was for the defendant, from which, after an unsucessful motion for a new trial, the plaintiff has appealed to this court. The position taken by the defendant in his answer that the agreement of August 12, 1870, was made for the purpose of correcting a mistake, or clerical error in the-original contract, cannot be maintained The terms of this contract are embodied in the modification and form a part of it. So far from alluding to any mistake that is supposed to have been made, it contains a stipulation that the ele-, fendant will perform the contract, original and modified, in the extended time of twelve months and both parties are pledged to abide by its terms. Holder v. Tailor, Brownlow and Gold. 23. The sole purpose for which the modification was made is expressed in the recital which it contains, that the defendant had not been able to comply with all the terms of the original contract to-be performed on his part, but was ready to deliver up-the forty-seven bonds for cancellation, and was evidently to grant him an extension of time in which to pay a part-of the purchase money for the stock which had been transferred to him. This is conclusively confirmed by the testimony of all the witnesses who were examined in regard to this matter by the defendant. As the answer contains the averment that the modified contract properly expressed the terms of agreement between the — 509 — parties, and as this instrument was not made for the purpose of correcting any mistake in the original agreement, the case is entirely stripped of its equitable aspect and depends exclusively upon the legal construction of the modified contract. The only -difficulty which is presented is to determine the effect of the sweeping-clause which is inserted at its conclusion, and which is expressed in these words : “ And in consideration of the premises, said county of Johnson does hereby sell, assign, transfer, and convey to said A. W. Ridings all the stock or shares in the capital stock of the Pacific Railroad to which the county of Johnson may in any wise be entitled in law or equity, after deducting said forty-seven bonds, or four hundred and seventy shares of stock so delivered up and cancelled.” It will be observed that by the provisions of the original contract of May 17, 1870, the recitals which it contains are made a part of the contract itself, and this contract is not abandoned, but wholly incorporated in the modification of August 12, 1870, forming a part of it and constituting one entry of record. By this modification, the original contract is continued for the period of twelve months as the rule of action by which the parties pledge themselves to be governed. It is the sum of money due by virtue of the original V contract that is forborne by the county, and the attention is expressly directed to the terms of it for an enumeration of the promises which the defendant was to perform within that time under the penalty of forfeiting the sum of $8,000. Hence, the original agreement and the modification constitute one single contract and must be construed together, and all documents to which reference is made may be examined with it in order to obtain a more perfect understanding of the subject matter. Bishop on Cont., sections 59, 577; Barfoot v. Freswell, 3 Keb. 465; Saltoun v. Houstoun, 1 Bing. 433; Sampson v. Easterby, 9 Bar. & Cr. 505; 54 Mo. 506. A view of the surrounding circumstances will strengthen the conclusion — 510 — that the terms of the original incorporated in the new agreement of August 12, 1870, cannot be regarded as a mere recital, but must be taken as an operative portion of the contract. It was provided in the agreement of May 17, 1870, that if the defendant should fail to perform his covenants therein within sixty days from its date, the contract should be void, and that a certificate of such performance, signed by the presiding justice of the county court and attested by the clerk and transmitted to the treasurer of the railroad company should be necessary to entitle him to a transfer of the shares of stock sold- to him upon the books of the company. The time had elapsed and the defendant had failed to pay the purchase money. The title to the shares of stock had not been vested in the defendant, and the-county-court had the option of regarding the contract at an end and of disposing of the stock at an advance in price of eight cents on the dollar, or of waiving these advantages and insisting on the terms of the original agreement. Shearman v. Fire Ins. Co., 46 N. Y. 526. In order to pursue the latter course, it was necessary to indicate the intention by some act or proceeding, and whatever may be thought of the wisdom of the measure, the course adopted by the court was to renew the contract-. But, as the time of the performance stated in the former contract had elapsed, a new period was to be adopted in which to pay the money and interest. Instead of remodeling the whole instrument to conform to the new state of affairs, the court adopted the careless and unskilful method of copying the former instrument and engrafting the new arrangement upon- it, concluding by the stipulation of each party to comply with it. The terms of the former agreement are, therefore, introduced in the form of a recital, but where it is evident from the tenor of the instrument that the parties contemplated and intended that the matters or acts recited should be performed, the recital will constitute an opera — 511 — tive part of the agreement. Payler v. Homersham, 4 M. & Selw. 423; Samson v. Easterby, supra. The great object of construction is to collect from the terms or language of the instrument, the manner and extent to which the parties intended to be bound. To facilitate this, the law has devised certain rules, which are not merely conventional, but are the canons by which all writings are to be construed, and the meaning and intention of men to be ascertained These rules are to be applied with consistency and uniformity. They constitute a part of the common law and the application of them, in the interpretation and construction of dis-positive writings, is not discretionary with courts of justice, but an imperative duty. If it were otherwise, no lawyer would be safe in advising upon the construction of a written instrument, nor any party in taking under it. Lord Bacon, speaking of the rule that a deed must be construed most strongly against the grantor (Bac. Max. Reg. 3, p. 14), says: “It is to be noted that this rule is the last to be resorted to, and is never to be relied upon, but where all other rules of exposition of words fail; and if any other come in place, this giveth place.” It is based upon the principle of self-interest, and can never be invoked in the construction of an instrument made in the execution of a power, where the grantor possesses no interest in the property conveyed. Cessante ratione cessat, et ipsa lex. But where the conveyance is made . by a trustee for the public, no alienation is to be presumed that is not clearly expressed, and the rule is reversed. Jackson v. Reeves, 3 Caines 293; Hagen v. Campbell, 8 Port. 9; Charles River Bridge v. Warren Bridge, 11 Pet. 546; Barton County v. Walser, 47 Mo. 189. The rule that the whole agreement is to be considered and a liberal interpretation given, is of universal application. The construction is to be upon the entire deed or agreement, not merely upon disjointed or particular parts oí it. The whole context, including recitals, must be considered in endeavoring to collect the intention of tha — 512 — parties, although the immediate object of inquiry be the meaning of an isolated cause. It is upon these principles that a general sweeping clause in a deed, which is indefinite in its character, will be restricted and limited to estates and things of the same nature and description as those previously mentioned. Moore v. McGrath, 1 Cowp. 9; Payler v. Homersham, supra; Rich. v. Lord, 18 Pick. 325; Lyman v. Clark, 9 Mass. 235; Jackson v. Stackhouse, 1 Cowen 122; Allen v. Holton, 20 Pick 458; Chapin v. Clemitson, 1 Barb. 311; Butcher v. Butcher, 4 Bos. & Pul. 113; Bac. Abr. Tit. Release K; Story on Agen., 62, 67. In Moore v. McGrath, 1 Cowp. 9, the lands intended to be granted were particularly named in the preamble, .and afterwards described in the premises, and then followed a sweeping clause purporting to convey “ all other of the donor’s lands, tenements, and hereditaments in Ireland.” The court held that nothing passed by the sweeping clause, and that its meaning was controlled by the particular description, although the donor had other estates in Ireland. In Payler v. Homersham, supra, it was recited in a composition deed that the defendant was indebted to his creditors in the several sums set to their respective names, and that they had agreed to take of him fifteen shillings in the pound thereon; and then the creditors in consideration of the said fifteen shillings in the pound paid to them, released the defendant from “all manner of actions, debts, claims, and demands in law and equity which they, or either of them, had against him, or thereafter could, should, or might have by reason of anything from the beginning of the world to the date of the release.” It was held that the release did not extend .to any thing but the respective debts recited and all actions and demands touching them, and that the general words had reference to the particular recital and were governed by it. The doctrine established by these cases has been recognized and approved by this court. In Schulenberg et al. v. Maguire et al., — 513 — 43 Mo. 391, it was stipulated in the contract for the sale of certain lease-hold property, that whereas one Norman Cutter was then asserting title to a portion of the property and had threatened to sue for the possession of the same, four of the notes given for the purchase money should be placed in the hands of a third person as a security to indemnify the purchasers against the claim of the said Cutter, or those who claim under him, or any ■other claimant. It was held that the addition of the words, “or any other claimant,” did not enlarge the meaning of the instrument so as to make the security extend to another claim which exisisted in favor of a stranger to Cutter’s title against the property. In Crumley v. Webb, 44 Mo. 444, a receipt was given by the plaintiff in which he acknowledged the sum of $6,500 of the defendant, and it was expressed therein that this sum was in full satisfaction of a certain judgment against the defendant, and that said sum was in full satisfaction of all claims and demands that he had or held against the defendant up to the date of the receipt. It was held by this court that the receipt did not extend to any other claim or demand, except the judgment; and the English cases are all cited and approved. In this contract the shares of stock to be transferred to the defendant was clearly' and definitely described in the preamble as the shares originally subscribed, one thousand in number. They are designated as being represented by the principal sums of the bonds deposited with the railroad company, fifty-three of which have been fully paid, and forty-seven of which remained in the hands of the company to be cancelled. The fifty-three bonds are described as equal to five hundred and thirty shares of stock, paid up in full, and the forty-seven bonds to four hundred and seventy shares, liable to cancellation. In the granting clause of the instrument, these shares are again described with the same clearness and precision, and are transferred to the defendant with the direction that the five hundred and — 514 — thirty shares paid in full shall be separately transferred to him on the books of the company, and that the four hundred and seventy shares shall be disposed of in any manner which shall be agreed upon by the defendant and the railroad company, and the defendant is constituted the agent of the county court for the evident purpose of releasing and annulling these shares ; if it should be required by the company as pre-requisite to the surrender of the bonds. In the additional language for the extension of time and renewal of this contract, the amount of stock which had been fully paid is again described and enumerated as five hundred and thirty shares. Apart from the general clause at the conclusion, there is nothing in the instrument which indicates an intention to enlarge the subject matter. The justice of the county court,, who presided in this transaction, together with an able attorney employed with reference to this particular subject, had reported to the court that the charter of the Pacific Railroad Company prohibited the issue of stock for interest paid on these bonds. If the mind is divested of a knowledge of the fact that the county was entitled to stock for such interest, the slightest doubt but that the five hundred and thirty shares alone were intended to be transferred by this instrument, as paid in full, could not exist. It is unusual for a tribunal whose office it is to protect the public interest to dispose of valuable property by vague and indefinite expressions. The addition of a single line, or change in the phraseology of a single sentence, would have been sufficient to include the interest stock with definite and unequivocal certainty, if the intention to transfer it had existed. The county had made a subsequent] subscription for five hundred shares of the stock of the Pacific Railroad Company, which is reported by George S. Grover to have been fully paid. If the county was the owner of these shares at the time this contract was made, or if any attempted transfer of — 515 — them had afterwards proved to be a nullity, would any one have the hardihood to contend that this stock also passed to the defendant by the general and indefinite clause,of this contract? Yet, if the unlimited force of the words is made to control the other portions of the writing, regardless of the context, it is sufficiently broad to embrace it. But it is the intention of the parties, deduced from the language of the whole instrument, that must govern the meaning of any indefinite expression. The intention that either party may have entertained, but failed to express in accordance with the legal construction of the context, is not in issue. 2 Whar. on Ev., secs. 936, 937; Smith v. Williams, 1 Murphy 430 ; Koehring v. Muemminghoff, 61 Mo. 403. The words of this contract, which is inter partes, must be considered as used by each party, and the statement contained in it that no interest had been paid on thirty-four of the forty-seven bonds is equivalent to the affirmation of both parties that the county owned no stock by reason of interest paid on them, and that none was intended to be purchased or sold. The statement that the interest had been paid on the remaining thirteen of these bonds to July 1, 1857, and that no interest had been paid on them since the year 1859, discloses the fact that the county court was in doubt as to the exact amount paid, and did not regard it as material to the transaction. It is, therefore, inconsistent with an intention to transfer the stock to which the county was entitled by virtue of the payment of interest on them. For the stock was being sold at seventy-seven cents on the dollar, and if such an intention had existed it was important to have clearly ascertained the exact amount of property to be sold in order to fix the price, and a failure to do so would have been a wilful disregard of official duty, which will not be presumed. This is evident, also, from the inability of the court to state with certainty the amount apparently remaining due upon the bonds, which might have been — 516 — ascertained with facility, if the payments of interest had been known, and the estimate that this amount was “about $88,500,” must have been based upon the theory that a very inconsiderable amount of interest had been paid, as the amount remaining due at that time, if no interest had been paid, would have been $88,924.28. The statement that “the county of Johnson sold five hundred and thirty shares of stock to said Ridings as fully paid up,” which occurs in the modification, is the interpretation given by the parties themselves to the terms of the original contract, and excludes the idea that the court regarded any shares of stock as fully paid other than those described. Expressio unius est exclusio alterius. It is not credible that a person of ordinary intelligence, who desired to dispose of $8,225 of the stock of the Pacific Railroad Company would select all these expressions, which are fatal to the right of property, as appropriate terms by which the same should be transferred. And it is not probable that a purchaser of ordinary shrewdness would accept an instrument which contains such terms as a muniment of title. They clearly establish the fact that at the time of making the original contract, the parties believed that no considerable amount of interest had been paid on these bonds, and that the county was not entitled to receive stock for intei’est paid on them, and did not intend to make any agreement in regard to it; and the rehearsal of the original contract in the modification, which contains no correction, as to the truth of these statements, but in it the shares fully paid are again enumerated as five hundred and thirty, shows clearly that this intention had not been changed. The indefinite langdage of the general clause must, therefore, be controlled and limited by the particular description of the shares of stock contained in the instrument, and cannot be construed to enlarge its effect. At the trial of this cause, the legal construction of — 517 — this contract was made to yield to the supposed effect of oral evidence of the intention of the county court. In cases of latent ambi guity in ordinary contracts such evidence is admitted to apply the words of the instrument to the person or thing intended. A latent ambiguity in respect to the property to be affected occurs in a dispositive writing when the language employed in the whole instrument does not serve to identify the thing to be transferred, but extrinsic evidence discloses the existence of two or more objects to which the whole description contained in the writing is equally applicable. But, where the legal construction of an instrument gives it a certain and definite meaning and effect, by which the property to be transferred is clearly ascertained and identified, its descriptive terms cannot be equally applicable to other property, and the instrument cannot be said to be ambiguous. Where the words are plain and free from ambiguity, oral evidence of the intention of the parties has been universally excluded. Declarations of intention constitute a part of the colloquium or previous conversation of the parties and can bé entitled to no greater weight than stipulations previously agreed upon, but not inserted in the writing, and, therefore, presumed to have been abandoned. Bunce v. Beck, 43 Mo. 266; State v. Lefaivre, 53 Mo. 470; Swick v. Sears, 1 Hill 17; Mackey v. Story, 3 Otto 589; Bailey v. Railroad Co., 17 Wall. 96; The Delaware, 14 Wall. 579; Or Greery v. Holly, 14 Wend. 26; Cook v. Shearman, 103 Mass. 21; Specht v. Howard, 16 Wall. 564; Bigelow v. Collamore, 5 Cush. 226; Gould v. Norfolk Lead Co., 9 Cush. 338. But the rule is more rigorously enforced when the contract derives its existence from the proceedings of a .statutory court, the record of which can be proved only by inspection. A county is not a corporation in the strict and proper sense of the term, but a political subdivision of the state, and holds its property in subordination and under the control of the legislature. Barton — 518 — County v. Walser, 47 Mo. 189. In Reardon v. St. Louis county, 36 Mo. 555, this court said : “The county court derives its powers from the legislature. It is not the-general agent or representative of the county ; it is a part of the state government, with specific powers, duties,, and functions, local to the county, but derived from the state, and not from the county, and subject to be altered or changed at the will of the legislature, without regard to the will of the county. It acts independently of the county in obedience to state laws. Duties imposed upon the county court by the legislature it performs as acts of obedience to the legislature, directly as a state functionary and not as an agent for the county. It is true it can bind the county in some contracts, subject it to some-legal obligations, and appropriate its money to certain-objects, but these powers it exercises by virtue of the authority derived from the state government and in obedience to state laws.” In Maupin v. Franklin County, 67 Mo. 327, it is said: “A county court, like any other court of record, can only speak by its record, and the statute (1 Wag. Stat., 419, sec. 5), expressly requires-that such courts keep ‘ just and faithful records of their proceedings.’ The obviously correct principle that parol evidence is inadmissible to prove a contract with the county court was announced at an early date in this-state, * * * and it certainly seems that the proper, and if we give heed to the statute and the earlier decisions, * * * the only course to pursue is in every instance to let the record speak the only utterances of the court entitled to recognition. It has often been held by this court in accordance with this view that when a contract has been made with a county court, the record of that court was the only legitimate evidence adducible in support of the contract.” In Reppy v. Jefferson County, 47 Mo. 66, this court says: “It would be absurd to permit the contracts or other actions of the county court regularly entered upon the record to be controlled — 519 — in after years, and in collateral proceedings by the failing recollections of its judges.” It is evident from these cases that in the sale of property, the county court acts, not as the agent of the ■county in the legal or technical sense of that term, but as a functionary of the state government, and its powers must be strictly construed. If the intention to ■dispose of the property of the county does not clearly appear, when the proceeding is viewed in the light of all the surrounding circumstances, the title of the county ■cannot be divested by oral evidence of the intention of the judges dehors the record. That portion of the deposition of Thornton, in which he states that, “Ridings purchased all the interest the county had, and all the ■stock to which the county was entitled in the Pacific Railroad, and that he understood that the county at the time sold all the interest she had or claimed in the Pacific Railroad,” should have been excluded. It was nothing more than an opinion as to the legal effect of the instrument, which it was the duty of the court to ■construe. And the statement of Gr. W. Houts, that, “when we made the May contract we were intending to sell all the stock,” etc., is equally objection able. His conclusion in respect to the intention of the other two justices, which, if coinciding, were paramount to his own, must have been based upon their declarations of intention. These declarations may have been made after the transaction, or his conclusion may have been unwarranted. The statement which the contract contains, that no interest had been paid on thirty-four of the forty-seven bonds, is fully equivalent to the assertion that the parties had no knowledge of the payment of this interest, and oral evidence for the purpose of showing-that this fact was known to the county court was in ■contradiction of the terms of the contract and should have been excluded. The orders of the county court adduced in evidence, and the report of Gr. S. Grover, even though their contents had been known to the — 520 — court, were not alone sufficient to have imparted the-information. That the agreement of August 12, 1870, was not an abandonment of the original contract, and a second and independent sale of the property, referring to the former contract for its terms, is abundantly evident. A modification is not an abandonment. The abandonment of the original contract as void, would have vested the-title of the $3,000, paid by the defendant, in the county. Yet this identical sum is again designated as the forfeit of the defendant for the non-performance of his new agreement. It was not in ‘the power of the county court to dispose of this property as a gift or gratuity, even by a contract under seal. State v. Cooper County Court, 17 Mo. 507. The power conferred is to sell. 1 Wag. Stat. 441, sec. 9. The power to manage and control does not include the power to sell or dispose of anything, except perishable property, and the power to sell does not confer the power to exchange or barter. Story on Agency, 71, 78. Saline County v. Wilson, 61 Mo. 287. A sale is the transfer of property for money. 1 Benj. on Sales, 2, 85. Idle fears of danger do not constitute a consideration. Ridings v. Hall, 48 Mo. 100; Cabot v. Haskins, 3 Pick. 83. . The provision in the original contract, that A. W. Ridings should defend the suits which might be instituted against the county in respect to the title to the shares of stock sold, is not a consideration, but a mere stipulation that the county should not warrant the-title. Otherwise it would be a delegation of the power-to manage and control the affairs of the county, which would be unlawful. The surrender of the forty-seven bonds was assured in law, and it was the duty of the-circuit attorney to enforce the cancellation of them against the Pacific Railroad Company. Hence, the only consideration for the sale of the stock which can be regarded as legitimate was the pecuniary price of $3,000, for though a seal, imports a consideration, no presumption arises that there was a different consideration from — 521 — that' which is ascertained by the instrument itself. In the agreement of August 12, 1870, there is no new consideration. The interest accruing on the amount which was due by the terms of the original contract is exactly set-off against the interest to be released on the warrants of the defendant. The county derived no additional benefit from the' arrangement. The value of the five hundred and thirty shares of stock on August 12, 1870, was $37,100. The theory that the original contract was abandoned and a new sale made, in which the interest stock was included, involves the idea that the county court not only diminished the price of the stock previously sold by the sum of $3,000, to which the county was entitled as damages, but increased the amount of the acquisition by additional property of the value of $8,225, thus annexing a reward of $18,325 to the failure of the defendant to perform his contract. For a conclusion so anomalous, we are surely entitled to demand the support of the most unequivocal declarations of intention. If such a wanton betrayal of the public trust was in the power of the county court, it would still be proper to demand that the utmost precision and clearness of language should be used in its record to set forth an intention to accomplish a thing so monstrous. But the language employed fully acquits that tribunal of an intention so unjust to the interests of the people. The contract of August 12, 1870, must, therefore, be held to be a proceeding in confirmation of the original contract by which the county court, though possessing the power to treat it as void, elected to abide by its terms waiving the time of performance. By making the declaration of law, which was asked by the defendant, and refusing the first, second, and fourth declarations, which were solicited on the part of the plaintiff, the court below manifested an erroneous construction of this contract, and a misconception of the rules of evidence which were applicable to this case, and — 522 — for these errors the judgment should be reversed and the cause remanded. Henry, C. J., Ray and Sherwood, JJ., and Greo. A. Madill, Special Judge, coneur.