WOODROUGH, Circuit Judge.
Henry Wilcox and Son, plaintiff, sued the Northport Irrigation District, defendant, to recover the amount of $5,600 and interest, alleged to be the unpaid balance due upon district warrants issued by the irrigation district August 17, 1931, in the aggregate amount of $5,900 for which the plaintiff “advanced, paid to and loaned” the defendant $5,900. The amended petition on which the case was tried presented two causes of action, the first upon the warrants and the second (upon the same facts) for money had and received to defendant’s use. The receipt of the money by the district and the issuance of the warrants was admitted but liability was denied by the defendant. The facts were stipulated, and on the trial to the court without a jury the plaintiff recovered judgment upon the first cause of action for the amount prayed for with proviso declared in the judgment that “if for any reason the plaintiff should not have judgment on its first cause of action then it is entitled to judgment on its second cause of action.” A tax levy was ordered to apply upon the judgment. The irrigation district appeals.
It contends that the warrants were issued by the officers of the district without authority of law and were null and void, and that the purchaser was chargeable with knowledge of the lack of power to issue the warrants and of their invalidity and therefore was not entitled to recovery. It also contends that the second cause of action was barred by the Nebraska four year statute of limitations. Sections 20-201, 20-206 C.S.1929 Nebr.
The trial court’s findings of fact based on the stipulation of the parties, are appended and need not be repeated in the opinion.1
The Nebraska court has fully settled that irrigation districts such as the de[115]*115fendant herein are public corporations and the powers of their officers and directors are limited by the terms of the statutes under which they are created and pursuant to which their powers are exercised. They are public rather than municipal corporations and their officers are public agents of the state and whoever contracts with them must at his peril take notice of the powers conferred and the limitations upon such powers expressed in the statute. Board of Directors of Alfalfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N.W. 1086; Lincoln & Dawson Co. Irr. Dist. v. McNeal, 60 Neb. 613, 83 N.W. 847; Elliott v. Calamus Irr. Dist., 120 Neb. 714, 235 N.W. 95; Paxton Irr. Dist. v. Conway, 94 Neb. 205, 142 N.W. 797; Gutta-Percha & Rubber Mfg. Co. v. Village of Ogalalla, 40 Neb. 775, 59 N.W. 513, 42 Am.St.Rep. 696.
At the time of the issuance of the warrants in suit the following sections of the Nebraska statutes provided a comprehensive plan under which the officers of irrigation districts were empowered to raise and expend money necessary to carry out the purposes of irrigation districts: Sections 46-113, '46-114, 46-117, 46-118, 46-119, 46-120, 46-121, 46-126, 46-127, 46-131, 46-132, C.S.Nebr.1929. Such officers were empowered to levy an assessment each year upon the land within the district and to borrow money only (1) by issuance and sale of bonds, after (he vote of the landowners, (2) by sale of warrants issued against a levy for the current year, and (3) by borrowing not to exceed fifty cents per acre for the land embraced in the district where, after the annual assessment for the current year, the funds provided are insufficient for the proper operation and maintenance of the district.
The power relied upon by the plaintiff to justify the issuance of the warrants issued to it on August 17, 1931, is granted by section 46-126. It is there provided that “whenever there is no cash on hand in the district treasury for the payment of general fund warrants when presented, the board of directors may in their discretion issue from time to time general fund warrants * * * to the aggregate amount required, but in no case in an amount greater than ninety per cent of the general fund levy for the current year, such warrants to be drawn on the general fund levy for the current year * *
The power so granted was doubtless conferred, as stated by counsel, because the assessment was levied in June or July of each year and the proceeds of the levy could not be immediately realized. But the power to issue warrants against the general fund levy is plainly and specifically [116]*116limited by the statute to the “general fund levy for the current year”. It is clear upon consideration of the above statutes that no power was conferred upon the directors of the district to issue warrants against a general fund levy that had been made in some preceding year. It is only the levy of the current year which they can anticipate by issuing warrants against it and this is an obviously necessary limitation of power under the statutory plan of providing for the operation of the district on a year to year 'basis. If there are funds left over unex-pended in any year, such funds must be carried forward into the fund of the next year. The fact that in some former year general fund warrants had not been issued against the levy of that year to the extent of ninety percent thereof could afford no justification for borrowing against that levy.
But the stipulation in this case shows as to the warrants in suit that the officers of the. district assumed to issue them August 17.1931, against the general fund levy of June 2, 1930. They bear the date of issuance August 17, 1931, and recite on their face, “Pay to the order of bearer * * * and charge to general fund levy year 1930.” The amount of that levy is also stated in the warrants as well as the amount of warrants that had theretofore been issued against it. Thus the warrants on their face informed the purchaser that the officers were undertaking to go back to the levy of a prior year to borrow money against it. If there had been a balance in that fund the statute required it to be transferred into the next year’s fund. It could not afford the basis for a loan.
The proof is that the levy of the year 1930 had in fact been exhausted by the expenditure of funds withdrawn from it and by the issuance of warrants against it and by a transfer of a small balance that remained in it to the 1931 assessment fund prior to the issuance of the warrants in suit, and though this fact may not have been known to the purchaser of the warrants, it throws light on the nature of the unauthorized act of issuing these warrants against the levy. It can not be said that the attempt to charge the prior year’s levy • was a mere irregularity in the exercise of an existing power. We conclude there was a complete lack of authority to issue the warrants against the levy of the prior year and that the judgment holding them to be valid was erroneous.
But though the officers of the district and the plaintiff were mistaken as to the powers of the officers, it does not follow that the plaintiff was without remedy. The plaintiff paid the officers1 of the district the sum of $7,600 on August 17, 1931, and the court found pursuant to the stipulation of the parties that the district used the money “for paying its just and legal obligations, expenses and liabilities which it could and did lawfully incur.” There is nothing to indicate that there was any collusion or fraud in the transaction or that any prejudice to the district was occasioned by its receipt of the money and applying it to its use. The result was simply a substitution of one creditor for several.
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WOODROUGH, Circuit Judge.
Henry Wilcox and Son, plaintiff, sued the Northport Irrigation District, defendant, to recover the amount of $5,600 and interest, alleged to be the unpaid balance due upon district warrants issued by the irrigation district August 17, 1931, in the aggregate amount of $5,900 for which the plaintiff “advanced, paid to and loaned” the defendant $5,900. The amended petition on which the case was tried presented two causes of action, the first upon the warrants and the second (upon the same facts) for money had and received to defendant’s use. The receipt of the money by the district and the issuance of the warrants was admitted but liability was denied by the defendant. The facts were stipulated, and on the trial to the court without a jury the plaintiff recovered judgment upon the first cause of action for the amount prayed for with proviso declared in the judgment that “if for any reason the plaintiff should not have judgment on its first cause of action then it is entitled to judgment on its second cause of action.” A tax levy was ordered to apply upon the judgment. The irrigation district appeals.
It contends that the warrants were issued by the officers of the district without authority of law and were null and void, and that the purchaser was chargeable with knowledge of the lack of power to issue the warrants and of their invalidity and therefore was not entitled to recovery. It also contends that the second cause of action was barred by the Nebraska four year statute of limitations. Sections 20-201, 20-206 C.S.1929 Nebr.
The trial court’s findings of fact based on the stipulation of the parties, are appended and need not be repeated in the opinion.1
The Nebraska court has fully settled that irrigation districts such as the de[115]*115fendant herein are public corporations and the powers of their officers and directors are limited by the terms of the statutes under which they are created and pursuant to which their powers are exercised. They are public rather than municipal corporations and their officers are public agents of the state and whoever contracts with them must at his peril take notice of the powers conferred and the limitations upon such powers expressed in the statute. Board of Directors of Alfalfa Irr. Dist. v. Collins, 46 Neb. 411, 64 N.W. 1086; Lincoln & Dawson Co. Irr. Dist. v. McNeal, 60 Neb. 613, 83 N.W. 847; Elliott v. Calamus Irr. Dist., 120 Neb. 714, 235 N.W. 95; Paxton Irr. Dist. v. Conway, 94 Neb. 205, 142 N.W. 797; Gutta-Percha & Rubber Mfg. Co. v. Village of Ogalalla, 40 Neb. 775, 59 N.W. 513, 42 Am.St.Rep. 696.
At the time of the issuance of the warrants in suit the following sections of the Nebraska statutes provided a comprehensive plan under which the officers of irrigation districts were empowered to raise and expend money necessary to carry out the purposes of irrigation districts: Sections 46-113, '46-114, 46-117, 46-118, 46-119, 46-120, 46-121, 46-126, 46-127, 46-131, 46-132, C.S.Nebr.1929. Such officers were empowered to levy an assessment each year upon the land within the district and to borrow money only (1) by issuance and sale of bonds, after (he vote of the landowners, (2) by sale of warrants issued against a levy for the current year, and (3) by borrowing not to exceed fifty cents per acre for the land embraced in the district where, after the annual assessment for the current year, the funds provided are insufficient for the proper operation and maintenance of the district.
The power relied upon by the plaintiff to justify the issuance of the warrants issued to it on August 17, 1931, is granted by section 46-126. It is there provided that “whenever there is no cash on hand in the district treasury for the payment of general fund warrants when presented, the board of directors may in their discretion issue from time to time general fund warrants * * * to the aggregate amount required, but in no case in an amount greater than ninety per cent of the general fund levy for the current year, such warrants to be drawn on the general fund levy for the current year * *
The power so granted was doubtless conferred, as stated by counsel, because the assessment was levied in June or July of each year and the proceeds of the levy could not be immediately realized. But the power to issue warrants against the general fund levy is plainly and specifically [116]*116limited by the statute to the “general fund levy for the current year”. It is clear upon consideration of the above statutes that no power was conferred upon the directors of the district to issue warrants against a general fund levy that had been made in some preceding year. It is only the levy of the current year which they can anticipate by issuing warrants against it and this is an obviously necessary limitation of power under the statutory plan of providing for the operation of the district on a year to year 'basis. If there are funds left over unex-pended in any year, such funds must be carried forward into the fund of the next year. The fact that in some former year general fund warrants had not been issued against the levy of that year to the extent of ninety percent thereof could afford no justification for borrowing against that levy.
But the stipulation in this case shows as to the warrants in suit that the officers of the. district assumed to issue them August 17.1931, against the general fund levy of June 2, 1930. They bear the date of issuance August 17, 1931, and recite on their face, “Pay to the order of bearer * * * and charge to general fund levy year 1930.” The amount of that levy is also stated in the warrants as well as the amount of warrants that had theretofore been issued against it. Thus the warrants on their face informed the purchaser that the officers were undertaking to go back to the levy of a prior year to borrow money against it. If there had been a balance in that fund the statute required it to be transferred into the next year’s fund. It could not afford the basis for a loan.
The proof is that the levy of the year 1930 had in fact been exhausted by the expenditure of funds withdrawn from it and by the issuance of warrants against it and by a transfer of a small balance that remained in it to the 1931 assessment fund prior to the issuance of the warrants in suit, and though this fact may not have been known to the purchaser of the warrants, it throws light on the nature of the unauthorized act of issuing these warrants against the levy. It can not be said that the attempt to charge the prior year’s levy • was a mere irregularity in the exercise of an existing power. We conclude there was a complete lack of authority to issue the warrants against the levy of the prior year and that the judgment holding them to be valid was erroneous.
But though the officers of the district and the plaintiff were mistaken as to the powers of the officers, it does not follow that the plaintiff was without remedy. The plaintiff paid the officers1 of the district the sum of $7,600 on August 17, 1931, and the court found pursuant to the stipulation of the parties that the district used the money “for paying its just and legal obligations, expenses and liabilities which it could and did lawfully incur.” There is nothing to indicate that there was any collusion or fraud in the transaction or that any prejudice to the district was occasioned by its receipt of the money and applying it to its use. The result was simply a substitution of one creditor for several. Under such circumstances it is held in Nebraska, as elsewhere, upon elemental principles of justice, that the district became obligated to the plaintiff for the amount paid by him and the action for money had and received may be maintained. Thiele v. Carey, 85 Neb. 454, 123 N.W. 442, 133 Am.St.Rep. 679; Nebraska State Bank Association v. Village of Burton, 134 Neb. 623, 279 N.W. 319; Lincoln Land Co. v. Village of Grant, 57 Neb. 70, 77 N.W. 349; Rogers v. City of Omaha, 76 Neb. 187, 107 N.W. 214; Nebraska Bitulithic Co. v. City of Omaha, 84 Neb. 375, 121 N.W. 443. There are situations shown in cases cited for the district where, if recovery were allowed for money had and received to the purchaser of an invalid bond or warrant, the result would be to subject the public corporation to a kind of obligation which it was forbidden by law to become liable for. But there is no such difficulty here. This plaintiff’s money was applied only to just obligations lawfully incurred by the district, and no injustice results from compelling it to repay the plaintiff.
Nor can it be held that the four year statute of limitations had run against plaintiff’s second cause of action. The money was paid by plaintiff August 17, 1931, and suit was commenced by summons duly served August 24, 1936. But the district recognized the validity of its obligation to the plaintiff for the money it received from him on August 17, 1931, by discharging a part of the obligation on May 7, 1934, and another part on March 7, 1935. On the first date it accepted a part of the warrants in payment of taxes on land in the district, and on the second date it accepted another part as payment on land [117]*117involved in tax foreclosure. These were affirmative acts within the period of limitations in unequivocal recognition of the district’s obligation to the plaintiff. Though a number of warrants (which we hold were invalid) were issued to the plaintiff, his payment to the district which gave rise to the district’s obligation for money had and received was a single transaction and the running of the statute was tolled by the district’s affirmative acts of recognition of the indebtedness. Nebraska State Bank Association v. Village of Burton, supra.
We conclude that the judgment on the second cause of action was without error except that the principal amount awarded (being the face amount of the warrants) was excessive. The plaintiff bought the warrants at a discount and did not pay the full face amount thereof to the district. Plaintiff was entitled to recover only the amount actually paid and received by the district to its use (less the credits above referred to for warrants discharged) with interest on that amount from date of payment. A remittitur should therefore be entered to reduce the principal amount of the judgment to accord with our conclusion. So reduced, the judgment on the second cause of action is affirmed.