John Nuveen & Co. v. City of Quincy , 115 Fla. 510 ( 1934 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] On February 25, 1929, an action of assumpsit on common counts was brought against the City of Quincy.

A bill of particulars was filed as follows:

"Oct. 30, 1909, To Money paid by John Nuveen Company to City of Quincy for bonds .................................. $ 9,891.66

Interest at 8% from Oct. 30, 1909, to Feb. 6, 1925, date of filing suit .......... 12,081.01 ---------- Total ...................................... $21,972.67

Less Interest Paid:

January 1st, 1910 ................. $250.00 July 1st, 1910 .................... 250.00 January 1st, 1911 ................. 250.00 July 1st, 1911 .................... 250.00 January 1st, 1912 ................. 250.00 July 1st, 1912 .................... 250.00 January 1st, 1913 ................. 250.00 July 1st, 1913 .................... 250.00 January 1st, 1914 ................. 250.00 July 1st, 1914 .................... 250.00 -------- Total interest paid .............. $2,500.00 $ 2,500.00 ---------- Due February 6th, 1925 ......................$19,472.67

"And plaintiff claims interest from the institution of suit to date of judgment."

Demurrers to several pleas were sustained as were demurrers to replications to the second plea which had been held good on demurrer to the plea. The replications sought to avoid the second plea which interposed the three year statute of limitations. Such replications were legally insufficient to toll or to enlarge the statute of limitations which had barred the action before it was brought.

Trial was had upon pleas of never was indebted as alleged, and that the alleged cause of action did not accrue within three years before this suit. A verdict for the defendant was directed and judgment entered thereon. Plaintiff took writ of error.

In 1909 the City of Quincy issued $80,000.00 of municipal bonds. Interest was paid on all the bonds for several years. In 1916 $70,000.00 of the bonds were held to be valid, but $10,000.00 of the bonds issued for school purposes were held to be invalid. Munroe v. Reeves, 71 Fla. 612, 71 So. 922 (1916). Later mandamus proceedings to compel payment of the bonds were quashed by this Court. State, ex rel. Nuveen v. Greer, 88 Fla. 249, 102 So. 739 (1924); 37 A. L. R. 1298.

At the trial John Nuveen testified for the plaintiff:

"I was doing business under the style of John Nuveen Company. That has been the style of our firm since 1898. The interest on all of the $80,000.00 Dollars of bonds was paid until January 1, 1915. At that time we received a communication from the City stating that they were prevented from sending us the interest on all the bonds, the whole $80,000.00, including the $10,000.00 school bonds, because of a taxpayer's suit filed against the City of Quincy which prohibited them from sending us the interest. We were then paying agents. The bonds were payable in the Banking House of John Nuveen Company. Now, with reference to these school bonds, the City did not pay any of the coupons on any of the $80,000.00 Dollars bonds on January 1, 1915, on July 1, 1915, on January 1, 1916, on July 1, 1916, and then on August 19, 1916, the City sent us funds to pay the interest for the interest periods covering the $70,000.00 bonds, but told us they were prevented from sending us the interest for the school bonds because of a taxpayer's suit which had been decided in favor of the taxpayer, but they did not at any time deny the obligation nor did they ever deny the obligation, until the year 1923."

On motion of counsel for the defendant the court struck the statement contained in the last clause in the above quoted testimony and stated to counsel for the plaintiff, "You may state for the record what you propose to prove." Mr. Taylor, counsel for the plaintiff, stated:

"We proffer to prove that the City of Quincy did not deny liability on the bonds here involved at any time prior to the institution of a mandamus suit in the Supreme Court in the year 1923, and that at all legal proceedings prior to that time in which the validity of these bonds was involved, the City of Quincy asserted and insisted upon their right to pay their bonds and never in judicial proceedings or otherwise, prior to the time of the mandamus proceedings aforesaid, denied its liability on these bonds according to their face and tenor and the face and tenor of the coupons thereto attached."

The court held that "at the time the plaintiff was put on notice and the time the Supreme Court decided these bonds were invalid, that his right of action to sue for money had and received accrued, and that within three years from that date the statute of limitations ran."

Plaintiff testified that on August 19, 1916, the city sent his company funds to pay the interest on $70,000.00 of the bonds, "but told us that they were prevented from sending us the interest for the school bonds because of a taxpayer's suit which had been decided in favor of the taxpayer." The Supreme Court of the State had on May 18, 1916, declared the $10,000.00 of school bonds to be invalid. Plaintiff testified that he was so advised by the city officials on August 19, 1916. This action was begun on February 25, 1925. Section 4229, 2589 C. G. L.

While the decree in the taxpayer's suit adjudicating the $10,000.00 of school bonds to be invalid, was not resadjudicata as to the plaintiff in this action, yet that suit in 1916 established the invalidity of the bonds and the plaintiff here was specifically advised of the result of the suit, by which a right of action, if any, for money had and received, accrued to the plaintiff in this action. There was no promise to pay as in Geer v. School District, 111 Fed. 682, and similar cases. Plaintiff brought mandamus in 1923 to compel payment of the bonds, upon theory that the bonds were valid; but the bonds were again in 1924 held to be invalid. Such mandamus action could not revive a right of action in assumpsit which had been barred by the statute of limitations.

It was not necessary for the city to expressly repudiate or to expressly deny liability on the bonds after they had been duly adjudged to be invalid. Plaintiff was advised by the City in August, 1916, that interest on the $10,000.00 school bonds would not be paid; and could have maintained an action in assumpsit when so advised; if not at the rendition of the decree of invalidity. See 37 C. J. 810, 812. The right of action having accrued when assumpsit could have been maintained, the statute of limitations had barred this action before it was brought. See Morton v. City of Nevada, 41 Fed. 582; 52 Fed. 350.

In State, ex rel. Nuveen v. Greer, 88 Fla. 249, text 255,102 So. 739, this Court said mandamus would not lie to compel a tax levy and payment of the illegal bounds, but that the holder of the bonds could recover in an action at law, on appropriate common counts, the money paid for the bonds with interestaccording to law, citing cases.

Such expressions and others in the opinion had reference to abstract legal rights under the circumstances of the case, no question of the statute of limitations being involved or considered. The Court had no power to enlarge or to revive the statute of limitations, and nothing in the opinion has any reference to, or bearing on, the subject of any statute of limitations. The mandamus action related to payment of the bonds, not to payment of money had and received.

Chapter 9057, Acts of 1921, merely empowers the City of Quincy to restore and repay the consideration it received for $10,000.00 school building bonds with interest; "and without restricting such payment to any particular fund or source, said city is especially empowered to make such repayment from the proceeds of any sale it may make of the school property acquired in part by the proceeds of the said bonds." The statute does no more than to authorize the city to restore a consideration it has received with interest thereon and to relieve the city of the legal duty to plead the statute of limitations in the premises. The city has pleaded the statute of limitations, and it is a defense to this action; but it leaves the obligation unsatisfied with statutory authority to repay the amount received with interest thereon. Section 3, Chapter 9892, Acts of 1923, does not change such situation.

Affirmed.

DAVIS, C. J., and WHITFIELD, TERRELL, BROWN and BUFORD, J. J., concur.