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FORT SCOTT V. HICKMAN, 112 U. S. 150 (1884)

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U.S. Supreme Court

Fort Scott v. Hickman, 112 U.S. 150 (1884)

Fort Scott v. Hickman

Submitted October 17, 1884

Decided November 3, 1884

112 U.S. 150

Syllabus

The statute of the Kansas (Gen.Stat. of Kansas, c. 80, art. 3, sec. 24, p. 634), providing that, in a case founded on contract, when "an acknowledgment of an existing liability, debt or claim" shall have been made, an action may be brought within the period prescribed for the same, after such acknowledgment, if such acknowledgment was in writing, signed by the party to be charged thereby, requires, as interpreted by the Supreme Court of Kansas, that the acknowledgment, to be effective, be made not to a stranger but to the creditor, or to some one acting for or representing him.

An acknowledgment cannot be regarded as an admission of indebtedness where the accompanying circumstances are such as to repel that inference or to leave it in doubt whether the party intended to prolong the time of legal limitation.

A committee of a city council, appointed to consider the city indebtedness, made a report containing a statement of the assets and liabilities of the city and including among the latter a certain issue of bonds called M. bonds. The report further proposed a plan of compromise to be made with the holders of city bonds, the proposal being made in the form of a circular which the committee recommended "to be sent to each person holding city bonds, except M, bonds, as to which we make no report." The circular, by its terms, purported to be addressed "to each person holding bonds of the city," and requested "each bondholder to express his views fully." The city council adopted the report of the committee and ordered the circular to be seat to the holders of the city bonds, and it was so sent to holders of bonds other than M. bonds, but not to holders of the latter. Held that neither the note nor the circular was an acknowledgment of the M. bonds as a debt of the city, so as to take them out of the statute of limitations.

Where a circuit court of the United States, on the trial of an action at law before it, on the waiver of a jury, makes a special finding of facts, on all the issues raised by the pleadings, and gives an erroneous judgment thereon, which this Court reverses, it is proper for this Court to direct such judgment to be entered by the circuit court as the special finding requires.

This was an action brought by the defendant in error in the Circuit Court of the United States for the District of Kansas against the City of Fort Scott, in the State of Kansas, to recover the amount of principal and interest due on 27 bonds for $500 each, issued by that city, 12 of which became due on July 1, 1873, and 15 on July 1, 1874. The bonds are coupon chanroblesvirtualawlibrarychanroblesvirtualawlibrary

Page 112 U. S. 151

bonds, with interest payable annually on the 1st of July at the rate of ten percent per annum, and are dated July 1, 1871. Each bond contains the heading, "Special Improvement Bond of the City of Fort Scott, Kansas," and this statement:

"Issued in accordance with sections 16 and 17 of an act of the Legislature of the State of Kansas, entitled 'An act relating to the powers and government of cities of the second class, and to repeal certain sections of chapter 19 of the General Statutes of 1868, approved March 8, 1871,' and in pursuance of an ordinance of the City of Fort Scott entitled 'An ordinance ordering the grading and macadamizing, etc., of certain streets and parts of streets, approved May 19, 1871.' Countersigned by the city treasurer, this twentieth day of September, 1871."

The suit was commenced July 1, 1880, and was tried by the circuit court without a jury. As to 11 of the 12 bonds that court found that all the coupons on them had been paid on and before July 1, 1873, but no payment of principal or interest had been made upon any of them since that date, except as stated in its fourth finding. As to the 15 bonds it found that all the coupons on them were paid on and before May 16, 1875, but no payment of principal or interest had been made upon any of them since that date, except as stated in its fourth finding. The remaining findings were as follows:

"4th. The court further finds, that, as to the remaining bond sued on herein, being bond number 78, it became due, by its terms, July 1, 1873, and on and prior to that date all the interest coupons thereon had been paid; that, on November 8, 1875, a payment was made on said bond number 78, of the sum of $290, and the balance of said bond remained due and unpaid at the time of the commencement of this action; that said payment upon bond 78 was made by Donnell, Lawson & Co., fiscal agents of the State of Kansas, upon the authority of certain letters sent them by J. H. Randolph, city treasurer of the defendant, written by him in the usual routine of his official duties, but without any special instruction or knowledge on the part of the city council of said city; which said letters are as follows, to-wit: "

Page 112 U. S. 152

" FORT SCOTT, KS., June 10, 1875"

"Mess. DONNELL, LAWSON & CO., New York"

" DEAR SIRS: Yours of the 2d inst. at hand. The coupons of our special improvement bonds are all retired except bonds Nos. 97 and 107 to 113; the last coupon on these Nos. (all past due) is not yet in; will give you statement of am't and Nos. of these bonds due and unpaid by next mail. You may redeem any one of these bonds whenever this fund in your hands is sufficient to do so. My remittance of May 26, of $245, was all to apply on coupons of bonds issued to the M., K. & T. R. Co., and not $70 of it for special im. fund, as you state you have credited, in your letter of June 1st. The Nos. of the bonds to which these coupons belong are 1 to 7, inclusive. You will please make the transfer of the $70 to your Fort Scott City coupon acc't. About what would our city funding bonds bring in your market, bonds running 10 years, int. payable s.a. at ten percent p'r annum?"

" Resp'y yours,"

" J. H. RANDOLPH, City Treasurer"

" FORT SCOTT, KS, Aug. 6, 1875"

"Mess. Donnell, Lawson & Co., New York"

" GENTLEMEN: I give you below the Nos. of our special improvement bonds now unpaid. Nos. 6 to 15, 17 to 22, 24, 30 to 39, 53 to 58, 60 to 80, 83 to 85, 97, 98, 99, and 104 to 115, in all 70 bonds of $500 each, all past due. I will be in New York last of this month, and will call and explain to you the situation in regard to these bonds so you may understand the reason why they are not paid and that owners of the same may govern themselves accordingly."

" Very resp'y yours,"

" J. H. RANDOLPH, City Treasurer"

" FORT SCOTT, KS., August 11, 1875"

"MESS. DONNELL, LAWSON & CO., New York"

" GENTLEMEN: I enclose you herewith d'ft for $500 to apply on interest, due on Fort Scott City special improvement bonds."

" If not convenient to apply on interest use to pay on bonds."

" Resp'y yours,"

" J. H. RANDOLPH"

"On November 8, 1875, said fiscal agents