Upton v. Starr

3 Ind. 508

• Court: Indiana Supreme Court
• Decided: November 27, 1852
• Status: Published

Opinion

Perkins, J.

Wentz, (who has since been succeeded in office by Starr,) as successor in office to James R. Greer, commenced suit before a justice of the peace upon the following note:

“ Blujfton, July 3d, 1839. Twelve months after date I promise to pay to James R. Greer, agent for Wells county, or his successor in office, or their order, the sum of 30 dollars for value received. Samuel G. Upton, [seal].”

On appeal to the Circuit Court, Wentz obtained judgment.

The note was given for a part of the purchase-money of a county-seat lot owned by the county, and sold by her agent, Greer, to Upton.

Unless we can regard the county agent quasi a corporation, a successor in that office to Greer, the payee of the note, cannot sue on it. We think we cannot so regard him. We discover nothing in the statute that will authorize it; and section 17, R. S. p. 351, expressly enacts that, on the appointment of a successor to a county agent removed, should such removed agent fail to deliver to his successor moneys, notes, &c., in his hands, the county commissioners shall sue him on his bond in their corporate name, &c. See the cases of Harper v. Ragan, 2 Blackf. 39; Johnson v. Harris, 3 id. 387; Morrow v. Seaman, id. 338; Ingersoll v. Cooper, 5 id. 426; Crawford v. Dean, 6 id. 181.

Upton sets up in bar of payment of this note that it was given for a part of the purchase-money of a county-seat lot; that said Greer, as county agent, sold said lot to him, Upton, for 100 dollars, of which sum he paid, at the time, 40 dollars, executing his notes, that in suit being one, for the remaining 60 dollars; that Greer kept the 40 dollars, reported the sale to the county commissioners as having been made at 60 dollars, which report was accepted by said commissioners; and that he, Upton, has already paid, with the 40 dollars.kept by Greer, the amount of 60 dollars, the sum at which the lot was reported as having been sold.

We think these facts constitute no bar. We think Upton is bound to pay the note in suit, and that Greer is bound to account to the county for the whole of the 100 dollars.

J. Morrison and S. Major, for the plaintiff. J. P. Greer, for the defendant.

Per Curiam.

The judgment is reversed, with costs. Cause remanded, &c.