116 Ky. 403 | Ky. Ct. App. | 1903
Opinion of the court by
Affirming.
The appellant, August Wurth, brought this suit against the city of Paducah to recover on five bonds of tbe city, and the coupons attached thereto, which he alleged were issued on the 13th day of November, 1868. The following is a specimen of each of the bonds, with the difference that they do not mature on the same day, but each of them had matured more than seventeen years before the institution, of this suit: .
*406 Bond No. 16.
“No. 16. The United States of America.
“$1,000.00. State of Kentucky. $1,000.00.
“New Orleans and Ohio Railroad Company.
“Bond of the City of Paducah.
“The City of Paducah, State of Kentucky,. acknowledges itself indebted to the New Orleans and Ohio Railroad Company in the sum of one thousand dollars, for value received, negotiable and payable to bearer, at the National Bank of the State of New York, in the City of New York, for which sum of one thousand dollars, the said City of Paducah, in pursuance of law, issues this Bond, signed by the Mayor and Clerk of the said City of Paducah, and does hereby promise and agree to pay the said sum of one thousand dollars on the first day of January, 1871, upon the presentation and delivery of this bond at the above-named place of payment; also the said City of Paducah promises and agrees to pay interest on said sum of one thousand dollars, at the rate of 6 per cent, per annum, payable at said bank on the 1st day of January and July in each and every year ensuing the date hereof, until the principal debt is paid, upon the delivery of the coupons hereunto attached, signed by the Clerk of said City. This Bond is one of a feries of thirty-eight, of like date and amount, and issued by said City, of Paducah to said New Orleans and Ohio Railroad Company, in payment of a bond of like amount issued by the City of Paducah, and due and payable.
“[Seal.] Witness the seal of the City of Paducah, and the signatures of the Mayor and Clerk of said City, this thirteenth day of November, one thousand eight hundred and sixty-eight.
“J. W. Sauner, Mayor of Paducah.
“W. M. Greenwood, Clerk of Paducah.”
It seems to us that neither of the defenses relied on is sufficient to stop the running of the statute. We will consider them separately. The contention that no “cause of action” accrued upon the bonds until' after presentation and demand for payment at the bank in the city of New York is the first one. The bonds provide, in terms, that
In the third paragraph of plaintiff's reply, he states “that the city of Paducah by its acts and proceedings has all the time since the issual of the bonds and coupons sued on herein recognized same as its bonds and indebtedness, and within fifteen years last past before the beginning of this suit the city of Paducah, by its mayor and council, has admitted and acknowledged defendant’s indebtedness for said bonds and coupons sued on, and agreed and promised to pay same.” The averments of this paragraph are equally ineffectual to take the .case out of the statute — first, because the suit is upon the original promise of the city to pay the bonds, and it is not alleged that the recognition by the city, and the promise to pay them, was made before the bar, and within the statutory period, and at a time when it was legally bound to pay them. But this defense would be unavailing, even if the averments' of the reply had been technically within the rule, for the reason that the mayor and council of a municipal corporation have no power or authority to
Judgment affirmed.