Board of Commissioners v. Hamlin , 31 Kan. 105 ( 1883 )

The opinion of the court was delivered by

Horton, C. J.:

It is clearly apparent from the findings of the trial court, that Fortescue had no authority from the county commissioners of Leavenworth county to execute the agreement of August 1, 1879, providing that if any of the bonds issued by Leavenworth county to the Platte City & Fort Des Moines railroad company should be compromised at a greater figure than twenty-five cents, Hamlin should have the full benefit thereof. When Fortescue appeared before the board on September 1, 1879, and made the request to have the accrued interest on the bonds included with the principal, he did not call the board's attention to his agreement of August 1, or present any copy thereof; and the order entered upon his request merely provided that new bonds were to be issued in lieu of the old ones for principal and interest, at twenty-five cents on the dollar. Neither the contract of August 1, 1879, nor the letter of Hamlin accompanying the bonds, was ever brought to the attention of the board of commissioners while in session, prior to the issuance of the new bonds to Hamlin and his acceptance thereof. No member of the board seems to have known anything about the contract of August 1, before the issuance of the new bonds, and only the chairman and the county clerk saw the letter of Hamlin accompanying the old bonds. As “the powers of a county are vested in a board of commissioners as a corporate entity, and not in the commissioners separately and as individual officers,” (Railway Co. v. Comm’rs of Anderson County, 16 Kas. 302,) the knowledge of the chairman of the board, and of the county clerk, of the contents of the letter of Hamlin accompanying the bonds, did not bind the board or the county of Leavenworth, or authorize the chairman or county clerk to issue any bonds upon the terms therein stated. The board of county commissioners of Leavenworth county never authorized the contract of August 1, 1879, never ratified it after it was executed, and never accepted the bonds of Hamlin upon condition that if like bonds were compromised at a greater sum than twenty-five cents on the dollar he should have the full benefit of the same; therefore the plaintiff, upon the findings of fact, was not entitled to judgment against the board of county commissioners.

Again, for another reason he was not entitled to judgment. The bonds were not compromised under the terms of the contract of August 1, 1879, or of the letter accompanying the bonds. More of this hereafter.

Hamlin has filed a cross-petition in error, asking, upon the record before us, that judgment be rendered in his favor and against the defendant W. M. Fortescue. His argument is, that if Fortescue exceeded his authority and the board has not ratified his acts, as he has been injured thereby, that Fortescue is liable. It appears from the findings that the bonds held by Hamlin were never compromised under the terms of the contract of August 1, 1879, or the letter accompanying the bonds and delivered to the county clerk. On the first of September, 1879, Fortescue appeared before the board of county commissioners, at a regular session of the board, and on behalf of Hamlin requested the board to include the accrued interest on the bonds which he presented, and thereupon an order was entered that new bonds be issued in lieu of the old bonds, for principal and accrued interest at 25 per cent. Under the terms of the contract of August 1, 1879, and the letter accompanying the bonds, Hamlin was entitled, in the first instance, to have his bonds compromised at 25 cents flat only. Under the order of the board of county commissioners he was allowed the accrued interest on his bonds, and at the time of surrender there was $175 of interest due on each of the bonds. Instead therefore, of -Hamlin obtaining new bonds for $1,000, to which he was entitled under the contract of August 1,1879, he actually received new bonds to the amount of $1,175. After accepting these bonds he cannot say that Fortescue is liable in making a contract without authority therefor, because such contract was changed with the consent of Hamlin, or what is the same, Hamlin obtained a compromise of his bonds upon better conditions .in the first instance than those proposed to him by the agreement of Fortescue, and having accepted the new bonds, he is in no condition now to complain.

Counsel however urges that the finding that Fortescue was Hamlin’s agent to secure the accrued interest to be added to the bonds issued to him, is not sustained by the evidence, because he alleges his action in that regard was without his knowledge, consent, or ratification. We think the evidence does not affirmatively show that Fortescue made the request to the board to include the accrued interest on Hamlin’s bonds, under his direction; but Fortescue did not appear before the board for his own benefit, or for the benefit of the county of Leavenworth, but in the interest of Hamlin solely; and when Hamlin accepted the new bonds with the knowledge that he was obtaining bonds to the amount of $1,175, in place of bonds to the amount of $1,000, as called for by his contract with Fortescue, he accepted such bonds with the knowledge that he had been allowed the accrued interest on his old bonds, and his acceptance of the new bonds under the circumstances must be regarded as a ratification of the action of Fortescue in appearing before the county board and obtaining the allowance of accrued interest. At the time of compromising the bonds, undoubtedly Hamlin congratulated himself upon obtaining better terms in the first instance than his contract called for, and having, by his acceptance of the bonds, abandoned his old contract executed by Fortescue, now that the county board has compromised other bonds at a greater figure than twenty-five cents flat, he cannot resurrect his old contract and seek to make Fortescue liable.

Further, it is somewhat doubtful whether the finding of the court that Fortescue stated and represented he had the authority to make the contract he executed to Hamlin was sustained by the evidence introduced upon the trial. Fortescue testified that when he called upon Hamlin at his home in East Bloomfield, New York, he had with him the printed pamphlet or circular of the ■ board of commissioners of Leavenworth county, and that he showed this pamphlet to Hamlin. This acquainted Hamlin with the terms offered by Leavenworth county for the compromise of its bonds.

Judgment against Fortescue will be denied.

The judgment of the district court must be reversed, and the cause remanded with the direction to enter judgment upon the findings in favor of the board of county commissioners.

All the Justices concurring.