Paulson v. County

137 N.W. 486, 23 N.D. 601, 1912 N.D. LEXIS 122

Opinion

Goss, J.

This actipn is brought by a physician to recover for professional services and supplies furnished by him for the support of the poor of Ward county. The complaint recites the performance of services and the furnishing of supplies of the total reasonable value of $750, and that “bills in due form or law, duly verified and approved by a commissioner of the board as aforesaid, were presented to the board of county commissioners of Ward'county for their consideration; and after mutilating said bills said board of county commissioners' allowed the plaintiff herein the sum of $265, and no more. Wherefore plaintiff prays judgment against the defendant for the sum of $750, less a credit of $265.” The trial court overruled a demurrer interposed on the ground that the complaint did not state facts sufficient to constitute a cause of action. From this order defendant appeals.

The only deduction to be drawn from the complaint is that the county commissioners allowed $265 in full for the $750 of claims presented against the county, and that plaintiff has credited the $265 so allowed, and brought this action for the balance. This necessarily implies an acceptance by plaintiff of a warrant for county funds for the $265 allowed. Does the complaint show an executed accord and satisfaction barring plaintiff’s recovery in the face of the demurrer? If this action was between private parties, we would have no hesitancy in holding the demurrer not well taken, as it would not sufficiently appear that the partial payment received was under an agreement that the same should be in full for the claim and so 'constitute an accord. But •where, as in this ease, in the payment of claims by counties or municipalities, the law requires the presentation of itemized and verified claims to the board of county commissioners as the administrative and fiscal agents of the county for their approval and determination, upon the fact of whether the services were rendered and goods furnished as charged for, as well as the reasonable value thereof, and consequent approval in whole or in part before allowance, and with the requirement that said board shall order warranty in payment to issue for the full amount and no more at which the claim is approved, under the presumption of the regularity of official action, the warrant is issued as the result of a quasi judicial finding by the board on the claim presented. Of all this plaintiff was conclusively presumed to have knowledge before acceptance of the warrant or the cash proceeds thereof, as he is bound to know the law under, which he presented his claim and sought its allowance and under which the warrant was issued. And the pleading of the issuance of the warrant and in effect its acceptance amounts to the pleading of an accord and satisfaction, and precludes him from claiming only partial payment, and thereunder crediting the amount received as a partial payment on the claim presented. He was bound to know that a warrant could not be issued, and accordingly tendered him as other than full payment of his claims, which he pleads were presented and considered, and for which in ioto the warrant was issued. With knowledge of the law thus imputed and -conclusively presumed, the acceptance of the warrant operated as an accord and satisfaction within the provisions of §§ 5269 and 5271, Eevised Codes 1905. As to necessity of presentation of claims and allowance and payment to the amount allowed, see §§ 3162-3166, 2389, 2393, Revised Codes 1905. As sustaining our conclusions, see Perry v. Cheboygan, 55 Mich. 250, 21 N. W. 333; Wapello County v. Sinnaman, 1 G. Greene, 413; Prick v. Plymouth County, 63 Iowa, 462, 19 N. W. 304; People ex rel. O’Mara v. Cayuga County, 43 N. Y. S. E. 77, 17 N. Y. Supp. 314; Zirker v. Hughes, 77 Cal. 235, 19 Pac. 423; Rawlins v. Jungquist, 16 Wyo. 403, 94 Pac. 464, and opinion on rehearing in same case, 16 Wyo. 426, 96 Pac. 144; La Plata County v. Morgan, 28 Colo. 322, 65 Pac. 41; La Plata County v. Durnell, 17 Colo. App. 85, 66 Pac. 1073; Eakin v. Nez Perces County, 4 Idaho, 131, 36 Pac. 702; Yavapai County v. O’Neill, 3 Ariz. 363, 29 Pac. 430; Cleveland County v. Seawell, 3 Okla. 281, 41 Pac. 592; Bowman v. Ogden City, 33 Utah, 196, 93 Pac. 561; Green v. Lancaster County, 61 Neb. 473, 85 N. W. 439; United States v. Adams, 7 Wall. 463, 19 L. ed. 249; United States v. Mowry, 154 U. S. 564, and 19 L. ed. 256, 14 Sup. Ct. Rep. 1213; 1 Cyc. 239, and notes, and Oyc. annotations. Consult also Flagg v. Marion County, 31 Or. 18, 48 Pac. 693; Rio Grande County v. Hobkirk, 13 Colo. App. 180, 56 Pac. 993; People ex rel. Morrison v. Board, 56 Hun, 459, 10 N. Y. Supp. 88; which three cases recognize the doctrine, but turn on tbe question of pleading.

All the foregoing cases are in point. We give tbe following excerpts from some of them: “Tbe council audited tbe claim at $50. Now if plaintiff was dissatisfied with this allowance, be should not have applied for and received tbe warrant on tbe treasurer and obtained payment thereof. He must be held to have acquiesced in tbe settlement thus made. . . . There is no good reason why plaintiff is not estopped, by accepting payment of tbe amount allowed, from making a further-claim for tbe same services passed upon by tbe council.” Perry v. Cheboygan, 55 Mich. 250, 21 N. W. 333. “Tbe acceptance of tbe part allowed should be considered satisfaction for tbe whole. If tbe party desired to bring suit be should repudiate tbe allowance, refuse to accept tbe amount allowed, .and bring bis action.” Wapello County v. Sinnaman, 1 G. Greene, 413. “Tbe proposition is now made by tbe learned counsel for tbe plaintiff that, inasmuch as tbe board of supervisor's did not pass upon the several items of tbe account rendered by him, but only upon tbe account as a whole, tbe case of tbe claimant is taken out of tbe ordinary and well-established rule. Tbe force of this contention, however, is not apparent. If before accepting tbe sum of $412, tbe relator bad ascertained that tbe board of supervisors bad not passed upon tbe several items, be could undoubtedly, by refusiu ~ to accept tbe money thus offered, require that there should be an examination of and a passing upon tbe several items of bis account. Not having done so, however, be is now, as it seems to us, precluded from making any claim upon such contention.” People ex rel. O’Mara v. Cayuga County, 43 N. Y. S. R. 77, 17 N. Y. Supp. 314, wbicb would answer any similar contention of this plaintiff regarding tbe act of tbe board in passing jointly upon all bills presented and making a lump allowance therefor. In Yavapai County v. O'Neill, 3 , 29 Pac. 430, the complaint recites the reception and cashing of the warrant under an agreement between the claimant and the county commissioners that such acts should not foreclose the right to sue for the part of the claim rejected. On demurrer the court held the agreement to be void, and that the acceptance of the money discharged the claim in full. We quote the following: “That manner of presentation, allowance, and payment of claims against the county, prescribed by the statute from which we have quoted, being exclusive of any other, the right of the plaintiff to maintain this action is governed thereby, and as well, is the board of supervisors. It is a salutary rule that requires the claimant, if he he dissatisfied with the allowance by the board, to either forego its part rejected or submit his claim as a whole to the courts. It would be unfair to the county that he should accept that part of the determination of the board that is to his advantage, and make the other a subject of litigation. The observance of the rule that when his claim is only partially allowed the claimant must accept the part so allowed in satisfaction of his whole claim, or litigate it as an entirety, would directly tend to the discouragement of the presentation of fictitious and extortionate claims against the county.” This case is quoted and followed in Eakin v. Nez Perces County, 4 Idaho, 131, 36 Pac. 702. In Cleveland County v. Seawell, 3 Okla. 281, 41 Pac. 592, we read: “It appears that the board of county commissioners allowed in part his claims presented for the use of such rooms. Warrants were drawn in his favor for the sums so allowed, which he accepted. As we find the law, such acceptance is a waiver of any further claim against the county. It is in the nature of an executed agreement to receive less than the amount claimed, and an acceptance of such sum will estop the party receiving the same from asserting his claim to the balance.” And such are the holdings generally of all the cases. Some are placed upon the doctrine of estoppel, and some upon that of accord and satisfaction; the result is the same in either case, though technically the latter is probably the true doctrine.

We are not unmindful that as a general rule a defense of accord and satisfaction must be specially plead by answer to be available, and under Webster v. McLaren, 19 N. D. 751, 123 N. W. 395, proven as plead to avail a defense. But where an accord and satisfaction is alleged in the complaint, in an action against a county, we see no good reason why a demurrer should not be sustained. And some of the foregoing authorities, particularly Yavapai County v. O’Neill, supra, decided on demurrer, and Rawlins v. Jungquist, 16 Wyo. 403, 426, 94 Pac. 464, and 96 Pac. 144, on page 147, wherein the defense was held available when defectively plead, are authority for our holding on this demurrer. It would seem that, in the absence of a plea of accord and satisfaction, public policy alone would be sufficient grounds for denying plaintiff judgment should he prove all the averments of his complaint, inasmuch as the legality of the disbursement of public money is involved.

Accordingly the order appealed from is reversed and the trial court will enter an order sustaining the demurrer. Appellant will recover taxable costs on this appeal.