Montgomery County v. American Emigrant Co.

Adams, J. I. Judgment was rendered in this case by default against the defendant, Savery, for the sum of $9,957, for money received by him as agent of the plaintiff, and against the defendant, Allen, as his surety. Afterward, the said Savery and Allen filed a petition to set aside the default, and set up in said petition, by way of’ defense, and among other things, the statute of limitations. The default was set aside arid the judgment vacated, on the ground that the claim was, barred by the statute of limitations. To the action of the court in this' respect the plaintiff excepted. i.'judgment: attorney. ■ ‘ It is claimed that, in the first place, no sufficient excuse was shown. The facts are as follows: Nourse & Kauffman were employed as attorneys by said Savery and Allen; the original notice was delivered to Kauffman, who alone was spoken to in the case, Nourse being absent; Kauffman was, at the time, in ill health, and able to attend to but very little business; before Nourse returned Kauffman was taken violently sick, and was confined to his bed; before default was taken he partially recovered, and was able to inform Nourse that they had been employed in this suit, but failed to — 93 — do so; tlie question is whether he was guilty of negligence. In regard to his condition, his physician testifies as follows: “He (Kauffman) was delirious part of the time; he was not competent to attend to business; I prohibited him from attending to business, or parties from talking to him on business.” The prohibition imposed upon him by his physician included, necessarily, an injunction to dismiss his business from his mind. In so doing, he was not in fault. It is true he became convalescent before the default was taken, but his recovery, even then, may have depended upon a sense of freedom from care and responsibility. It is not claimed that he was able to do much before the default was taken. We do not think, therefore, that the district court erred in holding this excuse sufficient. 2. principa!, liability of' lin&l'SVVd,mp The plaintiff further claims that the default should not have been set aside, even upon a sufficient-excuse being shown, to admit the plea of the statute of limitations. But Savery set up other defenses, and if the evidence sustains any one of them the decree should stand, even if the court erred in the ground upon which it was rendered. The money in question was swamp land cash indemnity. It was paid by the United States to Savery, as agent for the plaintiff, and was by him paid to the American Emigrant Company. Previous to this -time the plaintiff was the owner of certain swamp land and certain swamp land claims, and cash and scrip indemnity claims against the United States, and, being such owner, it entered into an alleged contract with the American Emigrant Company for the sale of the same to said company. The alleged contract states as follows: “That the county of Montgomery agrees to sell and convey to the American Emigrant Company all vacant swamp lands owned by the county, being 412 acres, at the price, to be therefor, of one dollar and twenty-five cents per acre. The said county further agrees to sell, assign and release to said company all the rest and residue of the swamp land claim and. the swamp land interest of said county, in law and in equity, of whatever the same may consist, and to as full and to as great an extent — 94 — as the county may hold or be entitled to the same, at and for the further sum of $3,000.” The contrast was executed on the 18th day of April, 1863, and was signed by William T. Reid, as president, and W. W. Merritt, as clerk of the board of supervisors, and is the contract for the cancelation of which this action was instituted. The money in question was received by said Savery upon the claim therein mentioned, and was paid by him to the said American Emigrant Company, as belonging to said company by reason of said sale. The District Court canceled the contract as being invalid, but refused to render judgment against said Savery for the said money received by him, and paid to said company, holding that the plaintiff’s claim to recover such money 'was barred by the statute of limitations. ■ Savery sets up in addition to the plea of the statute of limitations that “relying upon said contract and the good faith of the plaintiff, he paid over said funds to said American Emigrant Company with full knowledge and consent of the officers and agents of the plaintiff, and upon the representations of plaintiff in said contract, and by its officers, that it had sold and transferred all its interest in said funds to said company.” It is contended by the plaintiff that if the said contract is invalid, as the court held, the said Savery could not rely upon the representations of the plaintiff therein that it had sold and transferred all its interest in said funds to- said company, because the execution of the alleged contract was not the plaintiff’s act. To this it may be said that Savery was bound to exercise only reasonable care and diligence. The paper upon its face appeared to be the contract of the plaintiff. If it was executed without authority of law, or under a mistake, it was the fault of the board of supervisors, and their president and clerk, and not Savery’s fault. If there was any fault on his part, it was either in paying the money with knowledge of the invalidity of the contract, or in ignorance of it, but under such circumstances that his ignorance was not excusable. To our mind the evidenoe fails to show either that he had knowledge of the — 95 — invalidity of the contract, or would have acquired such knowledge in the exercise of reasonable care. In this connection it should be said that at the time Savery paid the money the contract had not been repudiated by the plaintiff, nor, so far as we have been able to discover, had any question in regard to its validity arisen. Inde'ed, more than a year after the payment of the money the board of supervisors recognized the validity of the contract by causing to be executed to said company a deed of over, eighteen thousand acres of land, in pursuance of the provision of the contract. It is urged by plaintiff that Savery was appointed to collect the money, and not to pay it out, and that in paying it out he paid at his peril. But it is averred in the petition that Savery was agent of said company, and procured himself to be appointed agent of the plaintiff. The said contract provides that “ the county will appoint all and any agents the company may request, to transact any business relating to said lands, claim or interest, such agents to be paid by the company, and the company alone to be responsible for their acts and fidelity.” It appears, therefore, that the understanding was that while Savery was nominally collecting the money for the county, he was really collecting it for said company, and that he was justified in supposing that he was authorized to pay it to said company. Whether the company became liable it is not necessary to inquire. On the 29th day of May, 1872, the District Court rendered a decree against the company canceling the said contract and deed, but did not render a decree against the company for said money. That decree was never appealed from, nor was it ever set aside or. modified, so far as said company was8 concerned. 3. contract: fact. ^ II. The said company appeals from the decree of the District Court canceling the said contract and the deed made in pursuance of it. But in our opinion the decree is correct. The contract was, we. think, made under a mistake of fact. A few days before it was made there was allowed to the plaintiff 1,730 acres of scrip indemnity. The board — 96 — of supervisors supposed,- and had reason to suppose, not only that no such allowance had been made, but that it was doubtful whether it ever would be made. One witness says: “McKay (the company’s agent) represented to the board at the time of the contract that the claim was unadjusted; that it would likely be a long time before it would be finally adjusted and attended with considerable expense.” Another witness says: “McKay said at' the 18th of April, 1863, meeting (being the meeting at which the contract was made) that it was very doubtful whether the county would ever get anything from Washington on their claims.” Another says: “McKay represented that the claims were- all doubtful; that it would be a great expense to the county to prosecute them, and then it might get nothing. He did not state positively, but he said he did not think the county would realize anything. He said their agent was .posted and understood the intriguing and wire-pulling about Washington better than any one unless he was there and posted.” As to whether the fact that the board of supervisors were ignorant of the allowance of the scrip indemity was a material fact, the chairman of the board in his testimony says: “I did not know, nor did the board know, at the time of the contract, that any indemnity had been allowed the county. If I had I would not have consented to the sale.” Another witness says: “If I had known at the time that there had been an allowance I, as a member of the board, would not have contracted.” Another says: “ At the time the contract was made the members of the board had no knowledge that there had been allowed and paid over to the Governor 1,730 acres of scrip indemnity.” This testimony is credible from the fact that by the contract, if it is valid, the county sold for $3000'four thousand seven hundred and thirty acres of scrip indemnity already allowed, and a claim for cash indemnity which resulted in the realization of over $10,000. We think that the evidence abundantly establishes that the contract was made under a mistake of fact, and that the mistake was a material one. -It is contended, however, that even if this is so the contract was afterwards ratified. On this point the evidence does not — 97 — satisfy us that the alleged acts of ratification were done with full knowledge of the material circumstances. We are of the opinion that on both appeals the case should be Affirmed.