
    Hardin v. Town of Highland Park, et al.
    (Decided September 21, 1911.)
    Appeal from Jefferson Circuit Court
    (Common Pleas Branch, First Division).
    Contracts — '.Claim oí Town Marshal for Services [Rendered — Limitation — Provision of Statute. — In an action by a Town Marshal upon ian allowance by the trustees of the town, to recover tne amount allowed, no warrant ¡having been issued for the payment of the ■cláim, it was error for the lower court to adjudge that the claim was barred by the five year statute of limitation, such claim being included in the class of action provided for in section 2514, Kentucky Statutes which allows the action to he commenced within fifteen years.
    ERiAKOLENi CHAPPELL for appellant.
    WILLIAM T. McNtALLIY for appellee.
   Opinion op the Court by

Judge Nunn

— Sever sing.

Appellant served as marshal of apuellee town for a number of years. On December 14, 1895, the board of trustees met and made him an allowance of $140.00 for services, and directed the issual of a warrant upon'the treasury of the town for that amount, and.it was issued. Two payments were made upon the warrant which totaled $59.00 leaving due thereon $81.00 with interest from March 27th, 1896. On August 5, 1896, the trustees made another allowance to appellant of $199.30, but no warrant was issued for its payment. On May 8th, 1908, appellant sued for these two amounts. On a trial before a jury he was awarded a verdict therefor. The lower court held both items barred by the Statutes' of Limitations, but submitted the case to the jury upon the theory that the, board of trustees made him a new promise by levying a tax to pay old debts, and judgments, which it was alleged included these debts. The court! afterward determined, however, under the authority of Wurth v. City of Paducah, 116 Ky., 403, that the action of the trustees in making this levy did not amount to a promise to pay these debts, and set the judgment aside and rendered a judgment in behalf of the town. The1 court was correct in determining that the order levying the tax did not constitute a promise to pay these debts under the authority cited. The only question before the court iis: Was the lower court correct in finding that the two claims were barred by the five years statute of limitations'? It is conceded that the claims are just, and the lower court said in its opinion that it regretted for that reason to disturb the finding of the jury, but felt impelled to find against appellant on account of the statutes of limitations. The lower court decided that section 2515, Kentucky Statutes, governed the case. It is in part, as follows:

“An action upon a contract not in writing, signed by the parties, express or implied; an action upon a liability created by statute, when no other time is fixed by the statutes creating the liability; * * * shall, be commenced within five years next after the cause of action accrued. ’ ’

Section 2514, Kentucky Statutes, provides, in part, as follows:

“An action or suit upon a recognizance, bond, or written contract; * # # or upon bond or obligation for the payment of money or property, or for the performance of any undertaking, shall be commenced within fifteen years after the cause of action first accrued.”

The question is: Which of the sections is applicable • to appellant’s claim? If appellee, by its legally constituted authority, obligated itself in writing to pay these claims then the fifteen years statute applies, and the claims are not barred. Appellee was a city of the sixth; class, and its board of trustees, as stated, by an order entered of record, allowed appellant his claim of $140.00, and the clerk of the board was directed to and did issue a warrant in favor of appellant for that amount, on which was paid $59.00. The board also allowed him a claim of $199.30 for services, but no warrant was issued. This order was signed by the chairman of the board and attested by the clerk.

This action was- instituted upon these claims, and if they meet the requirements of the statutes, appellant should win. This identical question has not been passed upon by this court, but similar ones have. In the case of Winchester & Lexington Turnpike Co. v. Wickliffe’s Admr., 100 Ky., 531, the turnpike company made an order on its books declaring a dividend to its stockholders. The administrator instituted his action to recover the dividends. A plea of the five and ten year sita,tute of limitations was interposed. The only writing which referred to Wickliffe’s claim was the orders on the books of the turnpike company in which they declared the dividends. In that case the court quoted section 2514 of the statutes, as above, and used the following language:

“The contract or obligation in this case was in writing, being part of the records of the company, signed by the proper officer. * * * The appellee was, therefore, entitled to judgment for all the dividends that had been declared within fifteen years before the 16th of October, 1894 (the time of the institution of this suit).”

In the case of Carnegie Phipps Co. v. The Board of Trustees of Beattyville. the issue arose over the following facts: The Pittsburg Bridge Company built a bridge for the town of Beattyville at the price of $1,750.00, payable in installments. At a meeting of the trustees of the) town the. following order was entered:

‘ ‘ Ordered that the Treasurer of the town of Beatty•viille, Ky., pay the Pittsburg Bridge Company the sum of six hundred and twenty-five dollars ($625.00) same being the sceond payment on the iron bridge due and payable at Beattyville, Ky., Oct. 1,1890, to bear interest at the rate of six per cent per annum after maturity. This February 4,1890.”

A copy of this order was delivered to the bridge company and it by written endorsement assigned it to the Carnegie Phipps Company, and it demanded payment which was.refused, and a suit was brought upon the writing. A general and special demurrer was filed to the petition and the court sustained the special demurrer upon the ground that the Pittsburg Bridge Co. was a necessary party to the 'action. The plaintiff refused to makel it a party and the court dismissed the action without prejudice. From that judgment an appeal Was taken to the Superior Court of Kentucky, and that Court said:

“Sec. 6 of Chap. 22 of the Gen. Statutes provides that: ‘All bonds, bills or notes for money or property shall be assignable so as to rest the right of action in the assignee.’
“Is the instrument sued • on a promissory note or a bill within the meaning of the statute? The instrument sued on was made by the town of Beattyville and is in the form of a bill drawn by its Board of Trustees upon its Treasury, attested by its clerk, and directing its Treasurer to pay to the Bridge Company a certain sum therein specified out of the Treasury of said city, and adding the same being the second payment on the iron bridge, due and payable at Beattyville, Ky., Oct. 1, 1890, to bear interest at the rate of six per cent per annum after maturity, and is signed and accepted by the treasurer. An indebtedness to the amount specified in the order is acknowledged, and it states the consideration1 and upon what fund it is chargeable, the general fund of the town. The order to pay is absolute, and there is no condition annexed to it, and if the town fails to pay when due, then it is to pay interest at the rate of 6 per cent, per annum after maturity. So the instrument sued on is a written promise to pay to the Bridge Company, at a time specified therein, a certain sum of money absolutely and at all event. It is therefore in the nature of a promissory note, and could be treated as such, and is assignable under the statutes.”

The courts of last resort, so far as we have been able to ascertain, class warrants and resolutions of record allowing claims for services, as obligations for the payment of money and as contracts to pay, and have refused to class them as checks and orders. (International Bank of St. Louis v. Franklin County, 65 Mo., 105). In the case of Board of Commissioners v. Day, 19, Ind., 450, the Court said: ' ]

“The auditor of the county is authorized by law to audit claims against the county, and tc draw upon the treasury for payment. Suchi an order when drawn is in legal effect the promissory note of the county.”

In the case of Texas Western Railroad v. Gentry, 69 Texas, 625, it is decided, as stated in the syllabus, that, “Such a resolution is a contract in writing within the meaning of the statutes of limitations, when it is shown it is the final acceptance of a previous agreement.”

Appellee relies mainly for an affirmance of the ease upon the cases of Wurth v. City of Paducah, supra, and N. & M. V. R. R. Co. v. Hay 8 Ky. L. R. 115. Appellee claims that the case last named is conclusive of the question at bar, and quotes the following from it:

“The minutes of a corporation showing the election of a secretary by the Board of Directors is not a written contract within the meaning of the Statute of Limitations; and an action by the secretary for compensation for service rendered is barred in five years after thle clo-se of each five years ’ service. ’ ’

When appellant in the case at bar was elected and qualified as marshal of appellee town, there was an Implied contract, at least, that the city would pay him a reasonable price for his services, and if he were now basing his action upon that promise it Would be barred by the five year statute, as in the case of the secretary; but appellant brought this action upon a contract made and entered of record on the books of the corporation to pay him a stated sum for his services which had theretofore been rendered.

In the case of Wurth v. City of Paducah, supra, the city officials transcended their constitutional powers. The opinion does not show that they promised in wrtting to pay the bonds. The bond holders attempted to show that the officials made individual, verbal promises to pay the bonds, but it was not shown that the promises, if any were made, were made within the fifteen years, the period in which the bonds were enforcible. The board of trustees in the-case at bar did not transcend their powers-They certainly had the right to make an order directing] the payment of these claims to the officer who had previously served the town and earned Ms wages. ~ ■

Por these reasons, the judgment of the lower court is reversed and cause remanded for further proceedings consistent herewith.  