Isenhour v. Barton County

BURGESS, J. This is an action upon ninety-five warrants issued by the county of Barton to different persons, and sold and delivered to the plaintiff. The petition was filed on the 5th day of April, 1902, and contained a separate count upon each warrant. In its answer defendant offered to let judgment go for principal and interest upon all counts except the 10, 12, 14, 16, 17, 18, 19, 20, 21, 22, 23, 24 and 42. As to these, defendant offered to let plaintiff take judgment on each of them for the amount of the principal of the warrants, but denied defendant’s liability for any in — 167 — terest thereon. The court, however, rendered judgment upon all the warrants, including interest from the time of their presentation and demand of the county treasurer of payment of the warrants; so that the only question for this court to determine on this appeal, under the facts, is as to whether the trial court erred in rendering judgment against the county for the interest of the warrants sued on in the counts numbered as before stated. As the same questions are involved with respect to all the warrants mentioned in these counts of the petition, any one of them may be taken as an illustration. "We will, therefore, take the warrant sued upon in the 12th count, which is numbered 1,699. It was issued to Lee Livingston by the county court of said county on February 8, 1898. This "warrant was presented to the county treasurer for payment, as shown by his warrant register and his indorsement on the back of the warrant, on the 11th day of February, 1898, by the plaintiff, Simeon Isenhour, and was by the treasurer protested for the want of funds with which to pay it. When this warrant was presented to the treasurer by Isenhour there were two blank printed assignments (so called for convenience) on the back of it, the first of which was signed by Livingston, the payee, as follows: “For value received................ assign the within warrant to..............this........day of ............,1...... “Lee Livingston.” After the institution of this suit and after the warrant was presented to the treasurer by Isenhour, on the 11th day of February, 1898, for payment, this blank form was filled out by the payee Livingston so as to read, at the time of trial, as follows: “For value received I assign the within warrant to Simeon Isenhour, this 11th day of February, 1898. “Lee Livingston.” — 168 — Plaintiff’s contention is that the warrant drew interest from the date of its presentation and demand of payment, on the 11th day of February, 1898. Defendant contends that under sections 6798 and 6799, Revised Statutes 1899, the warrant never commenced to draw interest, because it was never presented for payment by the payee, or by any other person to whom it had been assigned by him, in accordance with the requirement of the statute; in other words, it had never been presented for payment by any person who had the right to demand and receive payment. No question is raised respecting the pleadings. ' The warrant now under consideration, and which was introduced in evidence by plaintiff, is as follows: “State of Missouri. “$172.40. No. 1699. “ The Treasurer of the county of Barton. “Pay to Lee Livingston one hundred and seventy-two and forty one-hundredths dollars out of any 'money in the treasury belonging to the County Revenue Fund. Given at the courthouse in Lamar, Mo., this 8th day of February, A. D., 1898. “By order of the County Court. “Wm. P. Scott, President. “Attest: Chas. H. Smith, Clerk. “By Geo. Rumsey, Deputy.” The indorsements on the back of said warrant at the time of trial were as follows: “The within warrant presented for payment, and no money in the treasury for that purpose, this 11th day of February, 1898. “Douglass Inglish, County Treasurer.” “For value received I assign the within warrant to Simeon Isenhour, this 11th day of February, 1898. “Lee Livingston. “For value received..........assign the within warrant to..................this..........day of ,1 — 169 — Upon these facts the court rendered judgment on the 12th count in the petition, being on warrant numbered 1,699, in favor of plaintiff and against the defendant, for the sum of $216.51, which included interest from the date of presentation at the rate of six per cent per annum. There was embraced in the same judgment, as shown by the record, the same kind of judgment respecting all the other warrants described in the petition; that is, judgment was rendered in favor of the plaintiff for the amount of all the warrants, with interest at six per cent per annum, from the time of their presentation for payment up to the time of rendition of the judgment. The only error complained of is as to the action of the trial court in allowing interest upon said contested warrants, which had been sold and assigned to plaintiff by blank indorsements. In support of its contention defendant relies on sections 6798, 6799 and 6808, Revised Statutes 1899, which read as follows : ‘‘ See. 6798. No county treasurer in this State sb all pay any warrant drawn on him unless such warrant be presented for payment by the person in whose favor it is drawn, or by his assignee, executor or administrator ; and when presented for payment, if there be no money in >the treasury for that purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same. “Sec. 6799. All warrants drawn on the treasurer of any county shall be assignable, and every assignment of any such warrant shall be in the following form: For value received, I assign the within warrant to A B, this........day of............, 19..... (Signed) CD. No blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same.” “Sec. 6808. Any county treasurer violating any provisions of this article shall be deemed guilty of a — 170 — misdemeanor, and shall, on conviction, be punished,” etc. Plaintiff, in support of the judgment of the court, relies on section 6771, Revised Statutes 1899, which is as follows: “Sec. 6771. He shall procure and keep a well-bound book, in which he shall make an entry of all warrants presented to him for payment, which shall have been legally drawn for money by the county court . . . stating correctly the date, amount, number, in whose favor drawn, by whom presented, and the date the same was presented'; • and all warrants so presented shall be paid out of the funds mentioned in such warrants, and in the order in which they shall be presented for payment.” County warrants are creatures of the statute, and can only be issued in accordance therewith, but when no rate of interest is prescribed upon their face, they bear interest at the rate of six per cent per annum, as provided by section 3705, Revised Statutes 1899, after presentation to the treasurer of the county by which issued, •and failure to pay because of there being no money in the treasury for their payment. [Robbins v. Lincoln County Court, 3 Mo. 57; Skinner v. Platte County, 22 Mo. 438; State ex rel. v. Trustees, 61 Mo. 155.] Such warrants are merely evidences of indebtedness, nonnegotiable, and the Legislature had the power and authority to prescribe their form, by whom they should be signed and attested, prohibit “their payment by the county treasurer of the county issuing them, unless presented for payment by the person in whose favor drawn or by his assignee, executor or administrator, as well as also to provide that when any such warrant be presented for payment, if there be no money in the treasury for the purpose, the treasurer shall so certify on the back of the warrant, and shall date and subscribe the same. It also had the power and authority to provide that such warrants should be assignable, to pre — 171 — scribe the form thereof, and to provide that “no blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same. ’ ’ All of these things the Legislature did, as is shown by sections 6797, 6798 and 6799, Revised Statutes 1899, and upon the theory that these statutory provisions are valid, and the act of the Legislature with respect to said warrants exclusive, defendant asked the court, sitting as a jury, to declare the law to be as follows: ‘ ‘ The court declares the law to be that, if the court finds from the evidence that the warrants in question were not presented to the treasurer of the county for payment by the original payee therein, but that they were sold, transferred and delivered by such payees to plaintiff by blank assignment, that is, by -writing their names on the back of such warrants, but not filling in the name of the plaintiff or the dates of such transfers, and were then in that condition produced by the plaintiff to the treasurer for payment, then such warrants did not commence to draw interest, and the finding -will be for the defendant upon the issue involved.” This declaration of law was refused, which defendant insists was error. That a county warrant only draws interest from the time of its presentation to the county treasurer for payment by the person in whose favor it is drawn, or by his assignee, executor or administrator, agent or clerk, and payment refused because of there being no money in the treasury with which to pay it, is too clear for argument; but in the case at bar the plaintiff Isenhour presented the warrant and demanded its payment in person, when, although the equitable holder of the warrant, he was not its assignee, as the assignment was in blank, and the legal title to the warrant was still in the payee, Lee Livingston. Under such circumstances, plaintiff had no legal title to the warrant or authority to even fill the blank, by inserting his name therein, because the statute, section 6799, expressly pro — 172 — vides that “no blank indorsement shall transfer any right to a warrant, nor shall it authorize any holder to fill up the same.” The indorsement on the back of the warrant by the county treasurer, as follows: “The within warrant presented for payment, and no money in the treasury for that purpose, this 11th day of February, 1898,” was in express violation of the statute, and void, and for which he was guilty of a misdemeanor and liable, on conviction, to be punished according to law, and to be removed from office. [Sec. 6808, R. S. 1899.] This could not, therefore, in the remotest degree affect in any way the rights of the parties to this action. Plaintiff contends that it is apparent that the first clause of section 6798 is intended to avoid payment of warrants to persons who may have become possessed of them without right, in which event the county would be compelled to pay a second time; to which we may be permitted to add: and to prevent county officials from receiving in payment of the revenues due the counties such warrants at their face value, holding them, and thereafter turning them over to the counties upon their settlements therewith of such revenues, with the accumulated interest thereon, which could not well be done in case the warrants bé presented by the payee, his legal representative, or assignee. We do not see that section 6771, Revised Statutes 1899, which provides that the treasurer shall keep a book'“in which he shall make an entry of all warrants presented to him for, payment, which shall have been legally drawn . . . stating correctly the date, amount, number, in whose favor drawn, by whom presented, and the date the same was presented; and that all warrants so presented shall be paid out of the funds mentioned in such warrants, -and in the order in which they shall be presented for payment,” is in any way out of harmony with what we have said. — 173 — With respect to the contention of plaintiff that there was no evidence that he was not authorized by the legal owner of the warrant to present it for payment, and in the absence of such evidence the presumption prevails that he was authorized to present it for such purpose, or the treasurer would not have protested it, as the law presumes the treasurer did his duty, we are unable, to agree, for the following reasons: In the first place, the treasurer violated his duty in recognizing the warrant under the circumstances, and indorsing upon it “presented for payment, and no money in the treasury for that purpose. ’ ’ In the second place, as plaintiff wa,s in possession of the warrant at the time, and in person presented it for payment, it will be presumed that he was its owner and acting for himself and not for some other person; besides, he is prosecuting this suit as owner, which fact would seem to be inconsistent with the idea or presumption that another person was the owner and he was acting for him. The statute with respect to the county warrant under consideration is in all of its material provisions as” much part thereof as if it were written or printed upon the face of it, and is as binding upon the payee therein and the plaintiff, as its holder, as if they had expressly agreed to all of its provisions. [State to use of Wolff v. Berning, 74 Mo. 87; Wanschaff v. Benefit Society, 41 Mo. App. 206; Reed v. Painter, 129 Mo. 674.] And as a condition to plaintiff’s recovery of interest upon such warrant, and the others in contest, it devolves upon him to show that he had complied with the terms of the statute in regard thereto. This is an action at law, as distinguished from one in equity, and is, of course, governed by the law in such cases. Our conclusion is that the judgment should be reversed and the cause remanded, with directions to the trial court to enter up judgment in favor of plaintiff for the amount of the face of the warrants only. Gantt, — 174 — Valliant and Lamm, JJ., concur: Brace, C. J., Marshall and Fox, JJ., dissent.