85 Kan. 38 | Kan. | 1911
The opinion of the court was delivered by
In 1902 Thomas T. Kelly was a candidate for state treasurer. Charges were made that he had been guilty of misconduct while county clerk from 1890 to 1894, which had resulted in losses to the county. On February 15, 1902, the board of county commissioners made an investigation of the matter, and filed a report in effect sustaining the charges against him. On April 11, 1902, he presented to the board a written proposal, asking them to make an investigation and determine whether he was indebted to the county, and if so in what amount, and agreeing to accept their findings. At the same time he deposited $1000 with them to cover any amount for which they might find him liable. The commissioners accepted the proposal, made an investigation, and prepared a written report to the effect that he was indebted to the county in the sum of $1324.99, which they filed on May 15, 1902. On that day they notified him of the finding and requested him to pay the balance of $324.99. On July 7, 1902, he paid that amount. On July 8, 1907, he began action against the county to recover the $1324.99. A referee reported in his favor and a judgment was rendered accordingly, from which the county appeals.
The report of the referee is for the most part devoted to the question whether the plaintiff had in fact been indebted to the county. It includes a finding that the evidence “does not show the wrongful payment of any sum to plaintiff and does not show that he ever at any time obtained any money unlawfully from the county.” This finding is complained of, but it was made by the referee upon a mass of evidence, a part
If the proposal made to the commissioners and accepted and acted upon by them amounted to a contract for the settlement of the controversy, their decision, if made in good faith, was final and binding. The fact that the investigators were representatives of one of the parties would not affect the matter. An officer of a municipality is often made the arbitrator of its disputes with its contractors, and his decisions are as conclusive as though he were disinterested. (23 L. R. A., n. s., 317, note.) The referee found that the investigation made by the commissioners was “not thoroughly made in accordance with the spirit and intent of the agreement.” This can hardly be regarded as a finding of bad faith, and seems rather to suggest error through want of sufficient information. It will not be necessary, however, to pass upon this feature of the matter, as a similar question, relieved of some of the difficulties of this one, arises upon the consideration of the next contention.
The theory is advanced in behalf of the plaintiff that
The law is well settled that a payment made in response to a claim asserted as a matter of right is placed upon the same footing as an accord and satisfaction or a compromise and settlement, and can be recovered only upon proof of fraud, duress, or mistake of fact. (22 A. & E. Encycl. of L. 609-630; 30 Cyc. 1298-1319; Barbour’s Law of Payment, ch. 18; 94 Am. St. Rep. 408, note; County of Wabaunsee v. Walker, 8 Kan. 431; K. P. Rly. Co. v. Comm’rs of Wyandotte Co., 16 Kan. 587; Cummings v. Sigerson, 63 Kan. 340.)
“The law does not give him the right to pay a demand for which he knows he is not legally liable and then give him a right of action to recover his payment back.” (63 Kan. 343.)
In the note froxn the American State Reports just cited the reason for the rule is thus stated:
“If one would resist an unjust or illegal demand for payment, he should do so at the threshold. If litigation is' intended by the party making payment, it should precede payment. Otherwise, the privilege is left to him of selecting his own time and convenience for litigation, delaying it, as the case may be, until the evidence on which his adversary would have relied to sustain his claim may be lost by the lapse of time and the many casualties to which human affairs are exposed.” (Note, 94 Am. St. Rep. 408, 410.)
The plaintiff testified that while the investigation was in progress he told the chairman he wished to come before the board; that the reply given was that he would be notified when they were ready for him; and that he was not sent for until after the decision had been made. This evidence tends to impeach the fairness of the investigation, but not to show any fraud practiced upon .the plaintiff to induce him to pay the amount found against him. Whatever injustice characterized either the methods or the results of the investigation were known to him, and his course in electing to make the payment was taken with full knowledge of the facts. He paid the sum demanded, not because he was deceived into believing that he had caused a loss of that amount to the county, but because of his agreement to be governed by the finding made. His action therefore was not influenced either by fraud or by mistake of fact.
The petition was not framed upon the theory that the paymeht was made under duress, nor did the referee so find, but it is suggested in a supplemental
In any event we must conclude that the plaintiff’s action is barred by the statute of limitations. He con
The judgment is reversed with directions to render .judgment for the defendant.