Bissell v. Township of Spring Valley

• Decision Date: 09 January 1888
• Citation: 8 S.Ct. 495,31 L.Ed. 411,124 U.S. 225
• Parties: BISSELL v. TOWNSHIP OF SPRING VALLEY. 1
• Court: U.S. Supreme Court

124 U.S. 225

8 S.Ct. 495

31 L.Ed. 411

BISSELL v. TOWNSHIP OF SPRING VALLEY.¹

January 9, 1888.

In October, 1880, Charles R. Bissell, the plaintiff below, who is also plaintiff in error here, commenced an action in the circuit court of the United States for the District of Kansas, to recover the amount due on several interest coupons of 73 bonds of $1,000 each, purporting to have been issued by Spring Valley township, a municipal corporation of Kansas, to aid the Atlantic & Pacific Railway Company in the construction of a railroad through the limits of the township. The petition alleged that, pursuant to the act of the legislature of the state, entitled 'An act to enable municipal townships to subscribe for stock in any railroad, and to provide for the payment of the same,' approved February 25, 1879, and in pursuance of an order of the board of county commissioners of the county of Cherokee, in the state of Kansas, and a vote of more than three-fifths of the qualified veters of the township voting at an election held for that purpose, the township is ued, among others, 73 negotiable bonds, bearing date December 15, 1871, by each of which it promised to pay 15 years after date, to the railroad company or bearer, $1,000, with interest at the rate of 7 per cent. per annum, with coupons for the interest attached; that afterwards each of the bonds, with the coupons, was put upon the market, and sold and delivered to bona fide purchasers for full value; that in April, 1872, each of the said bonds, with the coupons attached, was registered in the office of the auditor of the state, and on each a certificate of such registration was indorsed; that after the issue and delivery of the bonds, and before their maturity, or the maturity of either of them, or of the coupons sued upon, they were sold and delivered to the plaintiff for the price of 90 cents on the dollar thereof; and that when said coupons became due they were presented for payment at the place where they were made payable, and payment was refused. The plaintiff, therefore, asked judgment for the amount due upon them. Attached to the petition was a copy of one of the coupons, and of one of the bonds, the several coupons and bonds being, except in their numbers, similar to the copies annexed. The bonds were signed 'WILLIAM H. CLARK, Chairman Board of County Commissioners,' and 'J. G. DUNLAVY, County Clerk.' The coupons were signed in the same way, except that preceding the name of Dunlavy was the word 'attest.' The act of Kansas, under which the bonds purported to be issued, required that they should 'be signed by the chairman of the board of county commissioners, and attested by the clerk, under the seal of the county.' To that petition the defendant answered, setting up various matters of defense, and, among others, that J. G. Dunlavy, whose name appeared on the bonds as county clerk, never signed or authorized his name to be signed to the bonds or to the coupons, nor did he affix to them, or authorize to be affixed, the seal of the county. A demurrer was interposed to several of the defenses, and, among others, to the one containing this allegation respecting the alleged signature of Dunlavy. The circuit court overruled the demurrer, so a* general law; which was left to include that the municipality could not be bound upon an instrument of that character unless it was executed by the officers named in the statute; that a purchaser must inquire whether the bonds and coupons were so executed; that if the instruments were not signed by the proper officers, but by persons having no authority, or color of authority, they were void; and that the allegation charged this in substance. The defendant then filed an amended answer, setting up, among other things, the same matter; that Dunlavy, whose name appeared on the bonds as county clerk, never signed or authorized his name to be signed to said bonds or coupons, nor did he affix or authorize to be affixed the seal of the county to them. To this answer the plaintiff replied, admitting that the bonds to which the interest coupons sued upon belonged were not attested by J. G. Dunlavy, county clerk of the county of Cherokee, in the state of Kansas, in person, but alleged the fact to be that, at the time of issuing the bonds, Dunlavy was sick and unable to discharge the duties of his office, and by reason thereof authorized his brother, John Dunlavy, to attest the bonds for him, by signing his name as county clerk, and affixing the seal of the county to them. Subsequently it was agreed between the parties, and the agreement was signed by their attorneys and filed as part of the record in the case, that this reply and the answer of the defendant should be withdrawn and that the defendant should file an answer, setting out the question of defense as to the signature of Dunlavy, and the affixing of the county seal, and also a plea of the statute of limitations as to coupons barred, such answer to be verified; that the plaintiff should forth with file his demurrer to this answer; and that the whole question should be submitted to the court, and judgment rendered in accordance with the pleadings, upon its sustaining or overruling the demurrer. This stipulation was carried out. An amended answer, duly verified, setting up those matters, was filed, to which the plaintiff demurred. The court overruled the demurrer, but the plaintiff refused further to plead, and stood upon it. Final judgment was thereupon entered for the defendant. On appeal to this court this judgment was affirmed. See Bissell v. Spring Valley Tp., 110 U.S. 162, 3 Sup. Ct. Rep. 555. In April, 1885, the plaintiff brought the present action in the circuit court (28 Fed. Rep. 54) against the township on certain other of the coupons attached to the same 73 bonds, alleging an execution of the bonds and coupons, and a complete registration in the office of the auditor of the state. To this petition the defendant answered as follows: '(1) As a first defense, said defendant says that it ought not to be charged with the said supposed debt by virtue of said supposed bonds and coupons, because it, by its attorneys, says that J. G. Dunlavy, whose name appears on said bonds and coupons as county clerk, never signed his name thereto or thereon, nor ever authorized any party or parties to sign his name thereto or thereon, and that said signature is not his signature, nor did he affix or authorize to be affixed the seal of said county of Cherokee to said bonds or coupons. (2) Said defendant, further answering and pleading in bar of this action, says that said plaintiff ought not to maintain his said action herein, because on the thirteenth day of October, 1880, the said plaintiff, Charles R. Bissell, filed his certain petition against this defendant in this court in debt, wherein and whereby he sought to charge this defendant with liability upon certain of the pretended bonds and coupons attached thereto, claimed by said plaintiff to have been issued by this defendant and to recover judgment against this defendant thereon. Said pretended bonds so sued upon in said action begun in 1880 were the identical pretended bonds sued upon in this present action, and the said pretended coupons declared upon in this action were of the same series and detached from the identical pretended bonds sued upon in the said action begun in 1880, as aforesaid, said action being No. 3,242, to the record of which reference is hereby made. That said defendant appeared and answered to the said first-mentioned petition in substance and effect as it has answered herein, to which answer said plaintiff, admitting the same to be true, demurred, and thereupon the said cause was tried upon its merits, and by the consideration of said court said defendant obtained a judgment in said action against said plaintiff, which, on appeal to the supreme court of the United States, was duly affirmed. Wherefore said defendant prays judgment and its costs herein expended.' To the first defense set up in this answer the plaintiff demurred, and the demurrer was sustained, on the ground that a complete registration alleged in the petition was conclusive of the validity of the bonds, on the authority of Lewis v. Commissioners, 105 U. S. 739, the question of res adjudicata, presented in the second count, being unaffected. To the second defense the plaintiff replied by a general denial. Afterwards a trial by jury was waived, and the plaintiff withdrew from his petition the allegation concerning registration, thus leaving the issue to be tried on the plea of res adjudicata. In support of this plea on the part of the defendant the record of the former action was introduced, against the objection of the plaintiff. Testimony was also offered by the plaintiff to prove the due execution of the bonds, and their purchase by him before maturity, without notice of any defense to them by the township, but it was excluded against his objection. The court thereupon rendered judgment for the defendant, giving full effect to the evidence sustaining the plea of res adjudicata. To review thi judgment the case is brought to this court.

Alfred Ennis and Wm. Burry, for plaintiff in error.

W. H. Rossington, J. R. Hallowell, and Charles B. Smith, for defendant in error.

Mr. Justice FIELD, after stating the facts as above, delivered the opinion of the court.

The plaintiff was defeated in his former action against the municipality, because the coupons, upon which its liability was asserted, were adjudged to be invalid...