Adams v. Harper ( 1886 )

Thompson, J.,

delivered the opinion of the court.

This action is in the nature of a suit in equity to surcharge and falsify an account. The substance of the case made on the pleadings and evidence is, that the defendant was the outgoing and the plaintiff the incoming treasurer of Butler county; that the defendant made a settlement with the plaintiff in which he turned over to him funds of the county to the amount of $10,000.91, taking bis receipt therefor; that among the funds so turned over were seventeen alleged coupons of the county for thirty dollars each, amounting in the aggregate at their face value to five hundred and ten dollars, which were a part of a fraudulent and unauthorized issue and were void; and that the county, upon settlement with the plaintiff, refuses to allow him credit for this sum of five hundred and ten dollars, but charges him with the same ; and he prays for a money judgment against the defendant, and for general relief. The court, sitting as a chancelor, rendered a judgment against the defendant for this sum of five hundred and ten dollars and costs.

I. The point that the petition contained two counts, and that the second count, not being in itself sufficient, must fail as not stating a cause of action, is not well taken. The petition contains but one count relating to one transaction. The second paragraph, upon which the controversy arises, is not a distinct count, but merely a separate statement of one of the items of the account which the plaintiff seeks to have corrected. Langford v. Sanger, 40 Mo. 160. Looking at the whole petition, it states a good cause of action.

II. There was no error in refusing the declarations •of law offered by the defendant, although after giving one for the plaintiff. The court is not bound to give declarations of law in chancery cases, but if it give them it is not error, provided it render the proper judgment. Hunter v. Miller, 36 Mo. 143; Richardson v. Pitts, 71 Mo. 128, 130; Alexander v. Relfe, 74 Mo. 495.

III. The point that the court erred in admitting in evidence the commission of the plaintiff, granted by the ■county court, is based on the assumption that, by the terms of section twenty-three, of article five, of the constitution, the governor, and not the county court, is required to issue the commission of the county treasurer. The constitutional provision is that, “the governor shall commission all officers, not otherwise provided for by law.” Section 5362, Revised Statutes, provides that the county treasurer shall be commissioned by the county court. It is, thei’ef ore, a casec ‘ otherwise pro vided for by law,” and the county court was the proper body to issue the commission.

IY. Upon the whole record, which has been examined with care, we are of opinion that the plaintiff was entitled to substantial relief. But we do not see that he is entitled to a money judgment. He has not lost any money as yet, though he is in danger of losing it in consequence of the fact that the county court .refuses to allow him credit for the coupons in question. Until he has lost something, he can not recover anything -from the defendant. But he is entitled, so far as it is practicable to make it, to such a decree as will protect him against the apprehended loss. He is entitled to be placed, so far as the parties before the court ■enable the court to do so, in the place which he would have occupied had the defendant made with him the proper settlement in the first instance. To this end we think that the decree should be set .aside and the circuit court directed to enter a decree requiring the defendant to re-state the account with the plaintiff so as to allow the plaintiff credit for the sum of five hundred and ten dollars, the face value of the void coupons, and, upon the plaintiff returning to him the void coupons, to surrender up to the plaintiff the plaintiff’s receipt to him given for the sum of $10,000.91, and to receive from the plaintiff in lieu thereof his receipt for the sum of $9,490.91. And if the receipt .■already given by the plaintiff to the defendant shall have been filed as a voucher in the county court, and hence out of his possession, the decree should take the form of declaring it void and of no effect as against the plaintiff.

The judgment will be reversed and the cause remanded, with directions to the circuit court to enter a decree in conformity with this opinion.

All the judges concur.