United States v. Harris

Seventh Circuit

United States v. Harris

77 F. 821, 23 C.C.A. 483, 1897 U.S. App. LEXIS 1644

CourtCourt of Appeals for the Seventh Circuit

DecidedJanuary 9, 1897

DocketNo. 319

StatusPublished

Cited by4 cases

This text of 77 F. 821 (United States v. Harris) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Harris, 77 F. 821, 23 C.C.A. 483, 1897 U.S. App. LEXIS 1644 (7th Cir. 1897).

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Opinion

WOODS, Circuit Judge,

after making the foregoing statement, delivered the opinion of the court.

Of the numerous errors assigned, the specifications in large part are predicated upon the reasons of the court for the conclusion declared. The finding being special, as the statute requires, the one question to be considered is whether the fads found justify the judgment rendered. We are of opinion that the recovery should have been of a less sum. The fact is distinctly found that Harris received the aggregate sum of §¡600 on the money orders cashed at Ottawa, La Salle, and Aurora, and to that extent the set-off pleaded is established. While it is true that postmasters are responsible to the government for moneys paid out upon forged signatures to money orders or otherwise lost, it does not result necessarily, or upon any consideration of public policy, that, on the state of facts shown in this record, the government may not assert the right of set-off, and thereby avoid the necessity of exacting the amount so recovered of its officers, whose fidelity is unquestioned, or of their unoffending bondsmen. While in the possession of the postmasters, the money obtained by Harris belonged to the government. Rev. St. c. 13. Like an individual owner, the government had a right, to pursue the money, and to’ reclaim it from Harris’ wrongful [825]*825possession, and, failing in that, to recover of him' the amount by suit or in any way provided by law. The statute which authorizes suits against the government, and under which this action was brought, requires the district attorney “to file a notice of any counterclaim, set-off, claim for damages, or other demand or defense whatsoever-of the government, in the premises.” This suit is maintainable only upon the theory that any tort committed by Stuart in taking money from the person of Harris, and turning it into the treasury, had been waived, mid that the government is liable as upon an implied promise to return the money or an equal amount. See Langford v. U. S., 101 U. S. 341. Bo, likewise, even if, under this statute, the strict rule permitted a set-off only of a liability on contract against a demand of the same character, the government was at liberty, for the purposes of the action, to waive the tort of Harris in taking the money, and assert his implied promise to repay. The doctrine is familiar.

It is insisted, however, that the question of set-off is determined by the last sentence of the finding, wherein the court said: “Under the evidence adduced at the trial in relation thereto, I find that no set-off or recoupment in favor of the government, and against this claim, exists.” That expression has no proper place in the finding. It is the statement of a conclusion, and does not control or affect the fact explicitly and properly stated, that Harris had received of postmasters, upon forged orders, the sum of $600, which, in the absence of any statement of fact to the contrary, will be presumed to have belonged to the government, notwithstanding the suggestion at the hearing that the postmasters may have used individual funds in paying the orders.

The right of set-off is not affected by the alleged assignment of the claim. All transfers and assignments of claims upon the United Btai.es, made before the allowance thereof, are declared by statute to be absolutely null and void. llev. St. § 3477. The petition charges that, on March 13th, Harris gave Baldwin an order for the money; that the order was presented to Stuart before noon of that day; that on the next day a formal assignment was executed; and that Stuart retained possession of the money until the ensuing 19th; bui in the answer it is alleged that Stuart transmitted the money to Washington on the 13th, without stating whether it was done before or after the order was executed or presented. The burden of proving, if the fact be material to his right of recovery, that an assignment was made before the money passed out of the possession of Stuart, was upon the petitioner, and, it not being so stated in the special finding, the contrary must he inferred. Wesson v. Saline Co., 34 U. S. App. 680. 20 C. C. A. 227, and 73 Fed. 917; Sneed v. Milling Co., 20 C. C. A. 230, 73 Fed. 925; Daube v. Iron Co. No. 323 of this court) 77 Fed. 713. When, therefore, the assignment was attempted, it must he deemed to have been of a claim against the government, and not against Stuart individually. If the latter, then the judgment, rendered, as it was, in favor of Harris in his own right, was totally wrong.

The judgment below is reversed, and the case remanded, with instructions to give judgment for the complainant in the sum of $710.

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WOODS, Circuit Judge,

after making the foregoing statement, delivered the opinion of the court.

Of the numerous errors assigned, the specifications in large part are predicated upon the reasons of the court for the conclusion declared. The finding being special, as the statute requires, the one question to be considered is whether the fads found justify the judgment rendered. We are of opinion that the recovery should have been of a less sum. The fact is distinctly found that Harris received the aggregate sum of §¡600 on the money orders cashed at Ottawa, La Salle, and Aurora, and to that extent the set-off pleaded is established. While it is true that postmasters are responsible to the government for moneys paid out upon forged signatures to money orders or otherwise lost, it does not result necessarily, or upon any consideration of public policy, that, on the state of facts shown in this record, the government may not assert the right of set-off, and thereby avoid the necessity of exacting the amount so recovered of its officers, whose fidelity is unquestioned, or of their unoffending bondsmen. While in the possession of the postmasters, the money obtained by Harris belonged to the government. Rev. St. c. 13. Like an individual owner, the government had a right, to pursue the money, and to’ reclaim it from Harris’ wrongful [825]*825possession, and, failing in that, to recover of him' the amount by suit or in any way provided by law. The statute which authorizes suits against the government, and under which this action was brought, requires the district attorney “to file a notice of any counterclaim, set-off, claim for damages, or other demand or defense whatsoever-of the government, in the premises.” This suit is maintainable only upon the theory that any tort committed by Stuart in taking money from the person of Harris, and turning it into the treasury, had been waived, mid that the government is liable as upon an implied promise to return the money or an equal amount. See Langford v. U. S., 101 U. S. 341. Bo, likewise, even if, under this statute, the strict rule permitted a set-off only of a liability on contract against a demand of the same character, the government was at liberty, for the purposes of the action, to waive the tort of Harris in taking the money, and assert his implied promise to repay. The doctrine is familiar.

It is insisted, however, that the question of set-off is determined by the last sentence of the finding, wherein the court said: “Under the evidence adduced at the trial in relation thereto, I find that no set-off or recoupment in favor of the government, and against this claim, exists.” That expression has no proper place in the finding. It is the statement of a conclusion, and does not control or affect the fact explicitly and properly stated, that Harris had received of postmasters, upon forged orders, the sum of $600, which, in the absence of any statement of fact to the contrary, will be presumed to have belonged to the government, notwithstanding the suggestion at the hearing that the postmasters may have used individual funds in paying the orders.

The right of set-off is not affected by the alleged assignment of the claim. All transfers and assignments of claims upon the United Btai.es, made before the allowance thereof, are declared by statute to be absolutely null and void. llev. St. § 3477. The petition charges that, on March 13th, Harris gave Baldwin an order for the money; that the order was presented to Stuart before noon of that day; that on the next day a formal assignment was executed; and that Stuart retained possession of the money until the ensuing 19th; bui in the answer it is alleged that Stuart transmitted the money to Washington on the 13th, without stating whether it was done before or after the order was executed or presented. The burden of proving, if the fact be material to his right of recovery, that an assignment was made before the money passed out of the possession of Stuart, was upon the petitioner, and, it not being so stated in the special finding, the contrary must he inferred. Wesson v. Saline Co., 34 U. S. App. 680. 20 C. C. A. 227, and 73 Fed. 917; Sneed v. Milling Co., 20 C. C. A. 230, 73 Fed. 925; Daube v. Iron Co. No. 323 of this court) 77 Fed. 713. When, therefore, the assignment was attempted, it must he deemed to have been of a claim against the government, and not against Stuart individually. If the latter, then the judgment, rendered, as it was, in favor of Harris in his own right, was totally wrong.

The judgment below is reversed, and the case remanded, with instructions to give judgment for the complainant in the sum of $710.

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77 F. 821, 23 C.C.A. 483, 1897 U.S. App. LEXIS 1644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-harris-ca7-1897.

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