State v. Kelly

• Decision Date: 09 May 1908
• Docket Number: 15,158
• Citation: 78 Kan. 42,96 P. 40
• Parties: THE STATE OF KANSAS v. T. T. KELLY et al
• Court: Kansas Supreme Court

96 P. 40

78 Kan. 42

THE STATE OF KANSAS v. T. T. KELLY et al

No. 15,158

Supreme Court of Kansas

May 9, 1908

Decided January, 1908.

Error from Shawnee district court; ALSTON W. DANA, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DAMAGES -- Conversion of Municipal Warrant -- Interest. Where the custodian of a municipal warrant sells it without authority before funds have been raised by the municipality for its redemption, and thereby becomes liable for its conversion, the measure of damages to the payee does not necessarily include interest up to the time of its payment.

2. PETITION -- Action on State Treasurer's Bond -- Conversion of a Warrant--Nominal Damages. A petition which alleges that the state treasurer, having custody of a municipal warrant issued for an indebtedness due to the state, sold it without authority before it was reached for payment, for its face and interest to the time of such sale turning the money into the treasury, does not show grounds for the recovery by the state of more than nominal damages against the treasurer, where there is no allegation that the warrant at the time of the sale was worth more than the amount then paid for it. The lack of such allegation is not supplied by an averment that some time after such sale the warrant was paid in full by the municipality issuing it, with interest to the date of payment.

Fred S. Jackson, attorney-general, John S. Dawson, and James P. Coleman, assistant attorneys-general, for The State.

Rossington & Smith, for defendants in error.

OPINION

MASON, J.:

The territory of Oklahoma made a contract with the state of Kansas for the keeping of territorial convicts at the state penitentiary. By its terms accounts becoming due thereunder were to be paid within thirty days after the close of each quarter, or as soon thereafter as the taxes for that purpose could be collected by the treasurer of the territory. Every three months settlements were had by the Oklahoma officials with the warden of the penitentiary and warrants of the territory were issued to him for the amounts owing. These warrants, in accordance with the territorial statute, bore interest at the rate of six per cent. per annum from their date. The warden turned over a number of them to the state treasurer, who after holding them for a time sold them for their face and accrued interest and covered the sum so realized into the state treasury. When the warrants were paid by the territory the holder received interest upon them up to that time. The state of Kansas thereafter brought an action against its treasurer upon his official bond for the recovery of the amount which the territory paid as interest on such warrants and which the state did not receive. A demurrer was sustained to the petition, which set out substantially the facts above stated, and the plaintiff prosecutes error.

It is suggested in behalf of the treasurer that as the law did not contemplate his receiving the warrants he was not chargeable with any misconduct with respect to them. But, since he did accept them, he should be held responsible for their proper handling. Moreover, as no statute authorized him to sell them his doing so was doubtless at least a technical violation of his official duty. This consideration might of itself have warranted a recovery of nominal damages, but is not important here, for this court has decided that "where a demurrer to a petition which states no ground for substantial damages is sustained, this court will not reverse the decision merely because the facts stated would entitle plaintiff to nominal damages." (Cook v. Smith, 67 Kan. 53 [syllabus], 72 P. 524. See, also, Shelton v. Bornt, 77 Kan. 1, 93 P. 341; 14 Encyc. Pl. & Pr....