Williams v. Guffy

<p>CASE 21 — ACTION BY THOMAS MITCHELL AGAINST THE SOUTHERN RAILWAY COMPANY TO RECOVER A BALANCE DUE ON A CONTRACT.</p> <p>Appeal from Jefferson Circuit Court. C. P. Brandi (Second Division).</p> <p>Matt 0’Doi-ierty, Judge.</p> <p>Judgment for defendant. Plaintiff appeals.</p> <p>POINTS AND AUTHORITIES CITED,</p> <p>1. A contract will not be construed to require one person to pay another’s damages resulting from the latter’s own negligence unless the purpose of the parties to make such a contract is so unjnistiakably plain that this construction cannot be avoided. (Perkins v. New York Central R. Co., 24 N. Yf 206; Mynard v. Syracuse, &c. R. Co., 71 N. -Y., 183; New Jersey Steam Navigation Co. v. Merchants Bank, 6 How., 344.)</p> <p>2. “Punctuation is the most fallible standard by which to interpret a writing.” (Ewing v. Burnett, 11 Peters, 41; Succession of Allen, 48 La. Ann., 1036, (55 Am. St Rops., 295); 17 Am. & Eng. Ency. of Law (2 Ed.) 20.)</p> <p>3. Independent Contractors. (Robinson v. Webb, 11 Bush, 464.)</p> <p>POINTS AND AUTHORITIES.</p> <p>Kansas City, Memphis & Birmingham Ry. v. Southern Railway News Co., 151 Mo., 373; (S. C., 52 S. W., 205); Casualty Insurance Company case, 82 Md., 575, 577; (S. C., 34 Atl., 778); Trenton R. R. v. Guarantor’s Liability Co., 60 N. J. Law, 246; (S. C., 37 Atl., 609); Baltimore & Ohio Southwestern R. R. v. Voigt, 176 U. S., 498.</p>

<p>APPEAL from District Court, Ada County.</p> <p>It will be seen by reference to the pleadings that this is an action brought by the county to recover money paid out upon an order of the board of county commissioners, from which order no appeal was taken. Our statute provides that an appeal may be taken from any order, decision or action of the board while acting in their official capacity bjr any person aggrieved thereby or by any taxpayer of the county where any demand is allowed against the county, or when any order, decision or action of the board is prejudicial to the public interest. This statute is broad and comprehensive, providing for an appeal from any order, action or decision in allowing illegal or prejudicial claims; and it would make no difference, so far as the application of the principle of law here invoked is concerned, whether the claims of Mr. Gess were wholly and totally illegal or not, as it would yet be necessary to review the matter by an appeal. This statute has always been interpreted, as we understand, to provide the only remedy for a review of the action of the board of county commissioners. (Idaho Rev. Stats., sec. 1776; Picotte v. Watt, 3 Idaho, 447, 31 Pae. 805; Meller v. Board of Commrs., ante, p. 44, 35 Pac. 712; Davis v.. Commrs., 4 Mont. 292, 1 Pac. 750; Morgan v. Board of County Commrs., ante, p. 418, 39 Pac. 1118; Rogers v. Hayes, 3 Idaho, 597, 32 Pac. 259; Broivn v. Otoe County, 6 Neb. Ill; Clark v. Dayton, 6 Neb. 192; Ragoss v. Cummings, 36 Neb. 375, 54 N. W. 683; State v. Churchill, 37 Neb. 702, 56 N. W. 484; Sioux County v. Jameson, 43 Neb. 265, 61 N. W. 596; Martin v. Supervisors, 29 N. Y. 645; Brady v. Supervisors, 2 Sand. 449; Brady v. Supervisors, 10 N. Y. 260; Boutetourt Co. v. Burger, 86 Ya. 530, 10 S. E. 264; Board of Warren Co. v. Gregory, 42 Ind. 32. J It was certainly proper under the law for the county to refuse to allow Mr. G-ess’ bills in excess of the amount which was due him according to their contention. Ther

<p>EEBOE TO THE COUNT OE COMMON PLEAS OE ERIE COUNTY.</p> <p>No. 113 January Term 1889, Sup. Ct.; court below, No. 198 February Term 1887, C. P.</p> <p>On March 2, 1887, a declaration in the common counts was filed in an action of assumpsit brought by William H. Hind-march against Edward Hoffman, claiming the sum of 1400. The defendant pleaded non-assumpsit, with leave, etc.</p> <p>By agreement in writing, the cause was submitted to the decision of the court, without a jury, under the act of April 22, 1874, P. L. 109, and on February 22, 1888, the court, Gunnison, P. J., filed the following decision :</p> <p>BINDINGS OE EACT.</p> <p>On the morning of October 10, 1885, one Richard Savanaek stole from the plaintiff, in Buffalo, N. Y., a sum of money, f400 of which upon the same day he deposited with the defendant, to be returned to him or upon his order. There is no allegation that the defendant knew the money was stolen at the time, and as a fact I find he did not know it. He was after-wards notified by the attorney for the plaintiff that the plaintiff claimed the money, that it had been stolen from him by Savanack, and after this notice he paid it, upon the order of Savanack, to Messrs. Branda ge, Weaver & Bell, of Buffalo, receiving from them a bond to indemnify him against any liability to any other person for the money. Upon his refusal afterwards to pay the amount to the plaintiff, this action in assumpsit was brought.</p> <p>CONCLUSIONS OK LAW.</p> <p>I have been unable to find any authority sustaining the right to maintain assumpsit in a case of this kind. The rules governing the action are well established, and inquire that there should be privity of contract, express or implied, between the parties, in order to maintain it: Finney v. Finney, 16 Pa. 380 ; Wells v. Stewart, 5 Binn. 325 ; Allen v. Irwin, 1 S. & R. 549. “ To maintain assumpsit, privity of contract, either express or implied, is necessary. The mere fact of one man’s money coming into the hands of

<p>Appeal from the St. Louis City Circuit Court. — Hon. John M. Wood, Judge.</p> <p>The action is based upon the contract of membership, and not on the certificate. Masonic Ben. Ass’n v. Bunch, 109 Mo. 560; 19 S. W. Eep. 25; Keener v. Grand Lodge, 38 Mo. App. 543; Lysaght v. Stone Mason, etc., 55 Id. 538. See, also, Wist v. Grand Lodge, 22 Ore. 271; 29 Pac. Rep. 610.</p> <p>The contract between relator and the order is found in the application taken in connection with the laws of the order. Smith v. Knights, etc., 36 Mo. App. 184-190; Bogins v. Supreme Lodge, etc., 76 Cal. 109; B,oyal Templars v. Curd, 111 Ill. 284-286; Holland v. Sup. Council, etc., 54 N. J. L. 490; 25 Atl. Eep. 367; Britton v. Sup. Goimcil, etc., 46 N. J. E. 102, 18 Atl. Eep. 675; Hutchinson v. Sup. Tent, etc., 22 N. Y. Sup. 801; Lorcher v. Sup. Lodge, 72 Mich.; 40 N. ~W. Eep. 545.'</p> <p>Under the contract between relator and the order, the laws of the order could be changed and altered in any reasonable manner. Supreme Lodge v. Knights, 117 Ind. 489; Stoherv. San Francisco, etc., Soc., 82 Cal. 557; 22 Pac. Eep. 1125; Sup. Council v. Ainsworth, 71 Ala. 436; Sup. Lodge v. La Malta, 31 S. W. Rep. (Tenn.) 493; Daughtry v. Sup. Lodge, 20 S. Rep. (La.) 712; Hobbs v. Ben. Ass’n, 42 N. W., Eep. (Iowa) 107; Courtney v. Ass’n, 53 Id. 238; West v. Grand Lodge, 37 S. W. Eep. (Tes.) 966; Gooch v. Ass’n, 109 Mass. 558; Grosvenorv. Society, 118 Id. 78; Chamberlain v. Lincoln, 129 Id. 70; Karcher v. Sup. Lodge, 137 Id. 368; Hellenberg v. Independent Order, 94 N. Y. 580; Sabin v. Phinney, 31 N. E. Eep. (N. Y.) 1087; Bogard v. Farmers, etc., Soc., 79 Mich. 440; Pope v. Bldg. Ass’n, 3 Rep. (Ch.) 47; Fugurev. Soc. St. Joseph, 46 Yt. 362-369; Poultney v. Bachman, 31 Hun, 49; St. Patrick, etc., Soc. v. McVey, 92 Pa. St.</p> <p>The knowledge of the Germania Lodge can not be imputed to the Grand Lodge, nor is the latter estopped from insisting upon the forfeiture. Borgraefe v. Knights, 22 Mo. App. 142; Harvey v. Grand