Fort Scott v. Hickman

Mr. Justice Blatchford delivered the opinion of the court. He stated the facts in the. foregoing language and continued: The declaration of the plaintiff avers the adoption by the city council of the motion of August 21, 1S78, and sets forth a copy thereof and of the circular letter, and alleges that one of the circulars was sent to the plaintiff, and one to each of the other holders of the defendant’s bonds ; that thus the defendant fully acknowledged and recognized the plaintiff’s bonds as valid and subsisting obligations of the defendant; and that, on the 8th of November, 1875, the defendant recognized the existence and validity of the plaintiff’s bonds by paying to him that day $290 on account thereof. The answer avers that the $290 was paid and credited wholly on bond No. 78 ; that there is due on- that bond $434, which sum the defendant offers to pay and brings into court; that more than five years elapsed after the maturity of the other bonds before this suit was brought, and it is barred by the statutes of limitation of Kansas; that the defendant never acknowledged or recognized the plaintiff’s bonds as subsisting obligations, as alleged in the declaration ; and that the circular was never sent to the plaintiff by the city, or by its clerk, or by any of its officers, and the plaintiff never received it from the city, or from any party on behalf of the city. To this answer there is a reply containing a general denial. The statute of Kansas in force when this suit ivas commenced (Gen. Stat. of Kansas, ch. 80, art. 3, sec. 18, sub. 1, p. 633) provided, that an action on any agreement, contract or promise in writing could only be brought within five years after the cause of action accrued, and not afterwards. Consequently, this suit was barred as to all the bonds, unless saved under the following provisions of the statute. “ In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debtor claim, or any promise to pay the same, *161 shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment, or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.” Id. sec. 24, p. 634, 635. The construction of section 24 by the Supreme Court of Kansas, in Elder v. Dyer, 26 Kansas, 604, is that a case may be taken out of the operation of section 18, in three ways: (1.) By the payment of part of the principal or interest; (2.) By an acknowledgment in writing of an existing liability, debt or claim, signed by the party to be charged; (3.) By a promise of payment in writing, signed by the party to be charged; that it is not necessary all these things should co-exist, but only requisite that one of them should exist; and that it is not necessary the acknowledgment should amount to a new promise. But it is also held by the same court, in decisions made prior to August, 1878, that the acknowledgment, to be effective, must be made, not to a stranger, but to a creditor, or to some one acting for or representing him. Sibert v. Wilder, 16 Kansas, 176; Schmucker v. Sibert, 18 Kansas, 104; Clawson v. McCune's Adm'r, 20 Kansas, 337. In the present case, the Circuit Court finds that the committee, in its report, recommended that the circular letter should “be sent to each person holding city and school district bonds, except Macadam bonds;” that the report stated that the committee made no report about Macadam bonds; that, on the report, the city council adopted a motion instructing the city clerk to have 100 copies printed of the circular letter, with the report, to be sent to -the holders of the city bonds; and that the clerk caused to be printed 100 copies of the circular letter, and sent a copy of the same to each of the holders of the bonds of the city, except to the holders of the special improvement or Macadam bonds, but did not send the circular to the plaintiff, or to any agent or representative of his, or to any other holder of the special improvement or Macadam bonds. It is not found that any copy of the circular was received from the city, or from any one acting for it, by any holder of any Macadam bond or his agent or representative. The recom *162 mendation. of the committee, and its statement that it made no report about the Macadam bonds, and the fact that the circular letter offers no compromise as to those bonds, was a sufficient reason for not communicating with the holders of those bonds. In this connection, it may be observed, that by the report of the case of United States v. Fort Scott, 99 U. S, 152, it appears that in that case, the city of Fort Scott, at October Term, 1878, contested in this court, its obligation to impose a tax on all. the taxable property of the city to pay like bonds of the same issue, claiming that it was bound to levy a tax only on property benefited, and that this court reversed the decision of the Circuit Court of the United States for the District of Kansas, which had decided in favor of the city, and against a holder of Macadam bonds, as to that question. That decision by this court was announced after the report of the committee was made, and after the. date of the circular letter. ■ It is plain that the city made no acknowledgment to the plaintiff. It held no communication with him. It sent no -copy of the circular letter to him. It intentionally refrained from doing so. It had a cogent reason for refraining, in the decision which had been so máde in its favor. He received no circular letter from the city. Nor did the exhibition to him of the circular letter by persons who held other bonds than Macadam bonds amount to an acknowledgment by the city to him. The circular letter states that the city council addresses it to each person holding bonds of the city, but it also states that this is done with a view to a compromise, and then it proposes, compromises as to other bonds, not including the Macadam bonds. So, also, the circular letter, at its close, asks that each •bondholder will .express his views fully, stating the amount and kinds of bonds he holds. But this applies, necessarily, only to those who hold bonds which are to be compromised and refunded. There is nothing in the circular letter which makés, or which evinces any intention of making, an acknowledgment to holders of Macadam bonds. In view of all this, the placing in the list, under the heading “ A statement of our indebtedness,” of the item, “City special improvement bonds and accrued interest, 45,000,” cannot be held, to amount to an ac *163 knowledgment to the plaintiff of any then existing liability to him on the Macadam bonds he held. It .was merely a statement that the city had issued that amount of special improvement or Macadam bonds, which it classed generally as “ indebtedness,” which others might claim was valid indebtedness' against it, but which it carefully omitted from any proposal of compromise, and said no more about in the circular. Although an acknowledgment need not, under the Kansas statute,' amount to a new promise, yet the rule is applicable, that 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. Roscoe v. Hale, 7 Gray, 274. Nor is there any ground for holding that what was entered upon the records of the city council is to be regarded as having been addressed to all the holders of bonds, including the plaintiff, and as having been in that way a sufficient acknowledgment to him, without the sending to him of a copy of the circular letter. For, that record states distinctly, that no report is made about Macadam bonds, and that the circular letter is not to be sent to their holders; and the. observations before made as to the contents of the circular letter, and as to the circumstances attending what is said in it. about the indebtedness on the Macadam bonds, apply with even more force to this branch of the case. The record, taken as a whole, did not amount to an acknowledgment to the plaintiff, as a holder of Macadam bonds. It is not found that the plaintiff ever knew of the record till after he brought this suit. The settled doctrine in Kansas, and the weight of authority elsewhere, is, that statutes of limitation are statutes of repose, and not merely statutes of presumption of payment. Therefore, to deprive a debtor of the benefit of such a statute, by an acknowledgment of. indebtedness, there must be an acknowledgment to the creditor as to the particular claim, and it must be shown to have been intentional. Roscoe v. Hale before cited. “ An acknowledgment of an existing liability, debt or claim,” within the meaning of the Kansas *164 statute, implies a meeting of minds, the right of the creditor to take what is written as an acknowledgment to him' of the existence of the debt, as well as the intention of the debtor, as deduced from the contents of the writing and all the facts accompanying it, to make such acknowledgment. In Wetzell v. Bussard, 11 Wheat. 309, 315, Ch. J. Marshall said: “ An acknowledgment which will revive the original cause of action must be unqualified and unconditional. It must show positively ' that the debt is due in whole or in part.” • To the same effect are Bell v. Morrison, 1 Pet. 351, 362, and Moore v. Bank of Columbia, 6 Pet. 86, 92. • In Barlow v. Barner, 1 Dillon, 418, .this statute of Kansas was under consideration by Mr. Justice Miller and Judge Dillon, and the court said: “ Courts, by their decisions as to the effect of loose and unsatisfactory oral admissions and new promises, had almost frittered away the statute of limitations, and, to remedy this, statutes similar to the one in force in this State have been quite generally enacted. The statute of Kansas reqiiires the acknowledgment to be in writing and signed by the party, and the acknowledgment must be of an existing liability with respect to the contract upon which a recovery is sought.” The statement of the city treasurer to the agents of the city in New York, in his letter of August 6, 1875, that special improvement bonds of certain numbers, which included those now sued on, were then unpaid, can avail nothing, for it was not a letter to the plaintiff or to his agent. The same remark is true as to the letter of August 11, 1875,-and it remits $500 to apply on Macadam bonds generally. As to the payment of the $290, it was paid on bond No. 78 only, as is found, no others of the bonds sued on having been presented to that date. It was not a payment on any other bond or on the bonds as a whole. It follows, from these considerations, that the conclusion of law made by the Circuit Court on the facts found was erroneous. It ought to havé rendered judgment for the defendant, except as to bond No. 78. Its special finding of facts is, under § 649 of the Revised Statutes, equivalent to the special verdict of a jury, Norris v. Jackson, 9 Wall. 125; Copelin v. Insurance *165 Co., 9 Wall. 461, 467; Insurance Co. v. Folsom, 18 Wall. 237, 249 ; Retzer v. Wood, 109 U. S. 185; and, as such special finding-covers all the issues raised by the pleadings, this court has the power, under § 701 of. the Revised Statutes, to direct such judgment to be entered as the special finding requires. In. cases like the present one, the proper practice is to direct a judgment for the defendant, instead of awarding a new trial. National Bank v. Insurance Co., 95 U. S. 673, 679 ; Fairfield v. County of Gallatin, 100 U. S. 47; Wright v. Blakeslee, 101 U. S. 174; People's Bank v. National Bank, 101 U. S. 181; Warnock v. Davis, 104 U. S. 775; Lincoln v. French, 105 U. S. 614; Ottowa v. Carey, 108 U. S. 110; Kirkbride v. Lafayette Co., 108 U. S. 208; Retzer v. Wood, 109 U. S. 185; Canada Southern Railroad Co. v. Gebhard, 109 U. S. 527; East St. Louis v. Zebley, 110 U. S. 321. The trial being without error, if the finding is sufficient, the same judgment is to be given as would be given on a special verdict. Where the special finding embraces only a part of the issues, as in Ex parte French, 91 U. S. 423, a different rule prevails. Accordingly, The judgment of the Circuit Court is reversed, and the case is remanded to that, court, with direction to enter a judg- . menifor the plaintiff’, on bond No. 78,for $500, xoith proper interest thereon, less a credit on said bond, of $290, of the date of November 8, 1875; and, as to the other bonds sued on, to enter a judgment for the defendant, with costs.