Kirkendall v. United States, 43504.

• Decision Date: 04 March 1940
• Docket Number: No. 43504.,43504.
• Citation: 90 Ct. Cl. 606,31 F. Supp. 766
• Parties: KIRKENDALL v. UNITED STATES.
• Court: U.S. Claims Court

31 F. Supp. 766

90 Ct. Cl. 606

KIRKENDALL v. UNITED STATES.

No. 43504.

Court of Claims.

March 4, 1940.

COPYRIGHT MATERIAL OMITTED

Thomas V. Sullivan, of Chicago, Ill. (Frank E. McAllister, of Chicago, Ill., on the brief), for plaintiff.

J. H. Sheppard, of Washington, D. C., and Samuel O. Clark, Jr., Asst. Atty. Gen. (Robert N. Anderson and Fred K. Dyar, Sp. Assts. to Atty. Gen., on the brief), for defendant.

Before WHALEY, Chief Justice, WHITAKER, WILLIAMS, LITTLETON, and GREEN, Judges.

WHALEY, Chief Justice.

The plaintiff brings this action individually and as administratrix of the estate of James F. Kirkendall. The action is based on an implied contract for the recovery of money appropriated by the defendant under legal forms and applied to the unpaid taxes of another person.

For many years there was solicited through the mails, and otherwise, subscriptions for the prosecution of a claim to collect a large estate supposed to be in England and known as the "Sir Francis Drake Estate." Promise was held out to those who contributed to receive a return in a thousand fold for each dollar subscribed. The prime mover in this venture was one Oscar M. Hartzell. Thousands of credulous people believing in the existence of this estate and desirous of acquiring wealth in this manner, sent contributions in money, checks, and postoffice orders to Oscar M. Hartzell at the Croydon Hotel in Chicago, Illinois.

Plaintiff and her husband honestly believed in the existence of this estate and contributed between sixteen and seventeen hundred dollars between them some ten years before his demise.

Plaintiff's husband, James F. Kirkendall, had been a travelling clothing salesman for many years. For two years before his death he had not been employed as a travelling salesman but had been engaged by Hartzell at a weekly stipend of between thirty and forty dollars for handling the funds which came to Hartzell. The checks and money orders were turned over to Kirkendall and he deposited them in his checking account in the bank. When they were collected he would draw the amount out of his checking account and place the money in an envelope in his safe deposit box at the bank. When these collections amounted to a substantial sum he would remit the amount to London or New York. The money received by Kirkendall for this fund was never commingled with his own funds in the safe deposit box.

On April 8, 1935, police officers of the City of Chicago raided the Croydon Hotel and arrested James F. Kirkendall and others in connection with this venture. Prior to Kirkendall's arrest, Oscar M. Hartzell had been arrested, tried, and convicted for the fraudulent use of the mail in connection with the Drake Estate and was serving a sentence in the penitentiary.

On the morning of his arrest, Kirkendall had remitted to New York $4,000, being all the collections of the Drake Estate in his safe deposit box.

After Kirkendall's arrest by the police officers he informed them of his safe deposit box and was taken by the officers to the bank where the contents of the box, consisting of $13,800 in currency and 324½ English pounds, were confiscated and taken to the Detective Bureau. Following the appropriation of his money by the police, Kirkendall was subjected to an exhausting and almost inhuman examination by the police authorities. This continued from about 5 o'clock in the afternoon until the Assistant State's Attorney and the Postal Inspector were brought in and Kirkendall's statement was taken down at 1:57 the next morning.

At the time of his arrest Kirkendall was 66 years of age and in very frail physical condition. He was suffering from diabetes, chronic myocarditis, uraemia and prostate condition. He was transferred by the police to the jail hospital after nine hours of gruelling questioning. Kirkendall was in the jail hospital until 5 o'clock in the afternoon of April 19, 1935, at which time he was released on bond.

Later the money obtained from Kirkendall by the police was turned over to the postal inspector under a subpoena to be used as evidence in the trial of the promoters of the Drake Estate. Following the acquisition of this money by the postal inspector, the collector of internal revenue prepared and filed a return for taxes for Oscar M. Hartzell for the year 1934, which return disclosed a large tax due the Government. The collector then levied the tax and under a warrant of distraint on the postoffice inspector obtained from him $13,800 and 324½ English pounds, which had been taken by the police authorities from the safe deposit box of Kirkendall, and applied this amount as a credit to the outstanding assessment against Hartzell for the year 1934.

A mere recital of the facts shows that the money taken from the postal inspector and...