18 Kan. 561 | Kan. | 1877
The opinion of the court was delivered by
This was an action on four certain bonds issued by Leavenworth county to the Union Pacific Railway Company. These bonds are part of the same issue of bonds as those which were held to be valid and binding obligations against the county of Leavenworth in the cases of Leavenworth County v. Miller, 7 Kas. 479, and Leavenworth County v. Higginbotham, 17 Kas. 62; and nothing therefore need be said in this case with regard to their validity. The judgment rendered by,the court below in this case was in favor of
Philadelphia, March 2d, 1875.
Wm. A. Martin, Leavenworth — Dear Sir: I send you the following bonds and coupons of the county of Leavenworth, which you will please do the best you can in settlement. Treat them the same as you would if they were your own. Nos. 39, 41, two bonds, series B, each $500, due Mch. 1, 1868,*568 with coupons for $17.50, each. Nos. 38, 40, two bonds, series C, each $500, due Mch. 1, 1869, with three coupons for $17.50 each. Nos. 51, 56, 58, three bonds, series D, each $1,000, due Sept. 1, 1865, with fifteen coupons for $35 each. We had the bonds and coupons that were due presented for payment at the Metropolitan Bank, N. Y. They said there was no money to meet them, and had not been for years. Hoping you may be able to make a settlement, I am yours truly, H. H. Houston, (Pr. Geo. B. B.)
Said bonds numbered 51, 56 and 58 have nothing to do with this case. On May 3d 1875, (which was the first Monday of May,) the board of county commissioners of the county of Leavenworth were to meet in session. On that day, Martin handed said bonds and coupons to Spry to collect, or to get new bonds in their place, or partly both. Spry was at that time an attorney-at-law and business agent, but he was not at that time a dealer in bonds. If he ever was or had been a dealer in bonds, it is not shown in this case. About three, or four, or five years .prior to that time, he was a partner in the firm of Atwood & Russell, who were real estate agents and dealers in securities. But it is not shown in this case that Spry ever sold or offered to sell a single bond except the bonds in controversy in this case. Spry, immediately after receiving said bonds and coupons from Martin, collected' so much of the interest due on said bonds as was represented by said eight coupons, amounting in the aggregate to $140. On the next day, to-wit, May 4th, Spry presented to the county board of Leavenworth county — the board then being in session — the following petition, to-wit:
Office of Geo. H. Spry, Attorney-at-Law, No. S15, Delaware St.,
Leavenworth, Kansas, May 4th, 1875.
To the Hon. Board of Commissioners of Leavenworth Co., Has.
Dear Sirs: I have in my hands for collection four bonds of Leavenworth county, which were issued to the “Union Pacific Railway* Company, Eastern Division.” These bonds are for five hundred dollars each. The interest coupons attached to them have all been paid, but the interest accrued from maturity of such bonds is still due. These bonds belong to an estate in which, I understand, some minor heirs are interested, and*569 the reason why they have not been previously presented for payment is because the administrator of the estate was not, for a long time after qualifying as such, aware of their existence. I am authorized to state that if the interest now due on these bonds is paid at once, and new bonds for the principal are given, such an arrangement will now be accepted. I trust that your honorable board will fully appreciate this matter, and beg a prompt settlement of the interest; and an issue of new bonds will indicate the honor and credit of our county. Yours truly, George H. Spry.
All the italics in the body of this petition, and in the foregoing letter of Houston’s, except the words “at once,” and “now,” are ours. Said Hannon was at that .time a member of the board of county commissioners of Leavenworth county, and was also chairman of the committee of ways-and-means; and Spry’s petition was referred to that committee. Hannon at that time told Spry in substance, that said petition could not be allowed, that the bonds were barred, and the county under no legal obligation to pay them. No report was ever made by the committee concerning said bonds. Spry kept the bonds for about three weeks, and in the meantime offered them for sale to several persons. He received several offers for them, the highest of which was $500. John Higginbotham offered him $500 for them, and Herman Markson offered him $300 for them. Prior to receiving these offers however, Spry asked Martin if the bonds were for sale. Martin answered, “that would depend on the owner, Mr. Houston.” Spry then said: “Suppose I see if I can get an offer?” Martin answered: “That is all right; you can see what is offered, and I will write to Mr. Houston.” Afterward Spry reported Markson’s offer to Martin, and wanted Martin to write to Houston. Martin said it would be useless. Spry then said “perhaps he could get a better offer.” Some days afterward Spry reported Higginbotham’s offer, and then Martin consented to write to Houston. Martin did not write however, but telegraphed to Houston. Houston replied both by telegram and by letter, declining the offer. As soon as Martin received the telegram he informed Spry that Hous
Philadelphia, Penn., 5, 26, 1875.
To W. A. Martin: Do not feel like selling at five hundred. Will write. H.- H. Houston.
Martin also received in answer the following letter from Houston, to-wit:
Philadelphia, May 27th, 1875.
Wm. A. Martin, Esq. — Dear Sir: We received your dispatch yesterday, reporting that you had an offer of' $500 for the $2,000 Leavenworth county bonds overdue and unpaid, which we telegraphed you to decline. We understand that that if suit is brought in the U. S. court for the amount of overdue bonds, it could be collected. Will you please consult Mr. Hurd, an attorney of your town, who has had experience in this matter — he having brought suit and collected moneys on these bonds for other parties. If he advises that you can collect by bringing suit, please let him do so on the bonds you hold in the name of H. H. Houston,-a citizen of Philadelphia, if the name of a non-resident is required. Yours truly, H. H. Houston.
About May 20th, to 28th, 1875, Hannon borrowed $1,000 of Thomas Leonard, and handed the same to one Patrick H. Madden, with the instructions for Madden to purchase said bonds for Hannon, and that Madden might retain all of said money that might remain after paying for said bonds. ■ Madden purchased the bonds of Spry, paying Spry therefor $960, and retained the other $40. At this time said bonds had long been overdue and dishonored, and their negotiability destroyed. About this time, eight new bonds, each for $250,
Martin was not informed until the 9th of June 1875 that Spry had sold said bonds of Houston. As soon as Martin was informed, he went to Spry, and to Madden, and repudiated the sale, claiming that Spry had no authority to sell the bonds, and tried to get the bonds back. Martiu could not at that time ascertain for whom Madden had purchased the bonds. Although Madden admitted that he did not purchase them for himself, yet he refused to tell for whom he did purchase them. Spry testified that he (Spry) did not know at the time of the sale for whom they were purchased, but supposed they were purchased for Madden. Spry at the time of said interview, and in the presence of Madden, told Martin that he (Spry) received $500 for the bonds, and Madden neither assented nor dissented. On that same day, June 9th, Spry deposited in the First National Bank of Leavenworth $475 to the credit of Martin. Therefore out of the $140 received by Spry for coupons, and $960 received by him for the bonds, (total, $1,100,) he kept $625. On the next day Spry left Leavenworth and went to Minneapolis, Minnesota, where he still resides. Martin never received nor accepted any portion of said $475, but it still remains in said bank. Afterward Martin ascertained that Hannon was the purchaser of said bonds, and in July 1875 Houston commenced this action. The county commissioners of Leavenworth county ldvied taxes for the years 1868, 1869, 1871, 1873, 1874, and 1875 for the purpose of raising funds to pay interest on the bonds issued to the Union Pacific Railway Company, E. D. Such funds were raised, and the county treasurer paid interest on said bonds, evidently as it was intended that he should by the county board when they raised the funds. He paid $140 interest on the Houston bonds to Spry; he paid $490 interest on the Houston bonds to Rupert; and he paid $420 interest on the new bonds, which was really overdue interest on the Houston bonds, to Hannon.
We think the court below committed no substantial error in this case, and therefore that the judgment rendered by it was correct.
The judgment will be affirmed.