Aull Savings Bank v. City of Lexington

74 Mo. 104

• Court: Supreme Court of Missouri
• Decided: October 15, 1881
• Status: Published

Opinion

Hough, J.

This was a suit upon two city warrants issued by the defendant. The petition contained two counts, one based on each warrant. The defendant demurred upon the following grounds : 1st, That said petition does not show any authority in plaintiff to purchase and deal in the warrants sued on; said public law relied on in the petition not vesting it with any such authority or power. 2nd, It does not show any power in the defendant to issue said warrants. 3rd, It does not allege that there was the money or means in the treasury with which to pay the said warrants ; but on the contrary, the petition shows they were not paid for that reason. 4th, And as to the second count, there is no allegation of the incorporated powers or right to sue of plaintiff nor of the incorporated rights and liabilities to be sued of the defendant; therefore, defendant asks judgment. The circuit court sustained the demurrer, and the plaintiff refusing to amend, final judgment was rendered for the defendant.

1. sayings banks, The petition states that the plaintiff' is a corporation, organized under article 6, chapter 87, Wagner’s Statutes, having power to contract and sue, and to purchase and hold the warrants sued- on. Under the chapter cited, the plaintiff has power to discount non-negotiable notes; and by the first section of the general law in relation to corporations, it has power to take, hold and convey any property, real, personal or mixed, in order to retain or secure the payment of any indebtedness or liability belonging to the corporation. 1 Wag. Stat., p. 289, § 1. It was not stated in the petition, nor was it necessary to state, how the plaintiff acquired the warrants sued on. They were, in effect, the promissory notes of the city, and plaintiff had a right to take and hold them. International Bank v. Franklin Co., 65 Mo. 109. The first ground of demurrer was, therefore, not well taken.

2. THE city OF lexington. Nor was the second ground of demurrer well taken. The petition alleges, in substance, that both warrants were regularly issued in pursuance of the charter and ordinances of the city, to pay, in one case, for work and labor done on a culvert in said city; and in the other case, for services rendered by the city engineer. Section 9, article 4 of the city charter, provides that the city shall have power to appropriate money and provide for the payment of the debts of the city and its current expenses. Acts 1870, p. 374. Both items of indebtedness are prima facie lawful.

s. city wabbants. The third ground of demurrer is insufficient under the decision of this court in International Bank v. Franklin County, supra.

4. cobpobation : pieadmg. There is no merit in the fourth ground of demurrer. The petition having sufficiently set forth, in the introduction to ^rs't count, the incorporation and corporate powers of both plaintiff and defendant, it was unnecessary to restate the same matter in the second count.

The judgment of the circuit court will be reversed and the cause remanded.

The other judges concur.