KENDALL V. STOKES, 44 U. S. 87 (1845)

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U.S. Supreme Court

Kendall v. Stokes, 44 U.S. 3 How. 87 87 (1845)

Kendall v. Stokes

44 U.S. (3 How.) 87


After the decision in the former case, Stokes &c., brought a suit against Kendall, which, rested ultimately on two counts, viz., the first and fifth. The first claimed damages for the suspension, by Kendall, on the books of the Post Office Department, of certain credits which had been entered by his predecessor. The fifth, for the refusal, by Kendall, to credit Stokes, &c., with the amount awarded in their favor by the Solicitor of the Treasury.

The damages claimed in the first count constituted a part of the reference to the solicitor, as shown by the plaintiffs below in their own evidence.

After a reference, an award, and the reception of the money awarded, another suit cannot be maintained on the original cause of action, upon the ground that the party had not proved, before the referee, all the damages he had sustained, or that his damage exceeded the amount which the arbitrator awarded.

The acts complained of were not ministerial, but were official acts, done by Kendall in his character of Postmaster General. A public officer, acting from a sense of duty, in a matter where he is required to exercise discretion, is not liable to an action for an error of judgment.

With regard to the fifth count, the application for the mandamus covered the same ground as that taken in this count. Both rested on the refusal of Kendall to pay a sum of money to which Stokes &c., were lawfully entitled.

But where a party has a choice of remedies for a wrong done, selects one, proceeds to judgment, and reaps the fruits of his judgment, he cannot afterwards proceed in another suit for the same cause of action.

This is especially true where the party has resorted to a mandamus, because it is not issued where the law affords a party any other adequate mode of redress. To allow him to maintain another suit for the same cause of action

Page 44 U. S. 88

would be inconsistent with the decision of the court which awarded the mandamus.

Evidence of special damage was improperly admitted, under the circumstances of the case in the court below.

The Supreme Court of the United States having affirmed ( 37 U. S. 12 Pet. 524) the decision of the circuit court, awarding a mandamus against Amos Kendall, application was made by Stokes &c., to Kendall that the sum of money mentioned in the proceedings should be carried to their credit on the books of the department. Kendall declined to interfere in the matter, upon the ground that the "auditor" had charge of the books, and that he himself had no power to settle claims, and no money to pay them with. On 30 March, 1838, a peremptory mandamus was issued by the circuit court, commanding him to obey and execute the act of Congress immediately on the receipt of the writ, and certify perfect obedience to it on 3 April next.

On 3 April, Mr. Kendall addressed a letter to the court saying that he had communicated the award of the Solicitor of the Treasury to the auditor, and received from him official information that the balanced of said award had been entered to the credit of the claimants, on the books.

In October, 1839, Stokes &c., brought a suit against Kendall. The declaration consisted of five counts, three of which were abandoned after a verdict and motion in arrest of judgment. The two remaining were the first and fifth.

The first count averred, in substance, that the plaintiffs, with Richard C. Stockton, deceased, under and in the name of said Richard, were contractors for the transportation of the mails of the United States, by virtue of certain contracts entered into between them and the late William T. Barry, then Postmaster General of the United States. That the said William T. Barry, as Postmaster General, did cause certain credits to be given, allowed, and entered in the books, accounts, and proper papers in the Post Office Department, in favor of the plaintiffs and said Richard, as such mail contractors, under and in the name of said Richard. That the defendant, on succeeding Mr. Barry in the office of Postmaster General, wrongfully, illegally, maliciously, and oppressively caused said items of account, so entered, and credited, and allowed, and upon which payments had been made, to be suspended on the books, accounts, and papers of the Post Office Department, and did cause said plaintiffs and said Richard, under and in the name of said Richard, to be charged on said books, papers, and accounts, with said several items and sums of money, amounting to $122,000.

The 5th count averred the passage of a private act of Congress

Page 44 U. S. 89

entitled "An act for the relief of Wm. B. Stokes, Richard C. Stockton, Lucius W. Stockton, and Daniel Moore" by which the Solicitor of the Treasury was authorized and required to determine on the equity of the claims of them, or any of them, growing out of certain alleged contracts between them and Mr. Barry, and by which the Postmaster General was directed to credit them with such amounts as might be awarded, pursuant to the act. This count also averred the actual rendition of an award by Virgil Maxcy, then Solicitor of the Treasury, for the sum of $162,727.05, in favor of Richard C. Stockton, as the representative of himself and the plaintiffs below, and the refusal of Mr. Kendall to comply fully with the terms of the award, by crediting them with the full amount awarded.

The cause came on for trial at November term, 1841, which resulted in a verdict for the plaintiffs.

After the rendition of the verdict aforesaid, the defendant produced the following certificate by the said jurors, and prayed the court to be permitted to have the same entered on the minutes of the court, to which the court assented.

"We, the jurors, empanelled in the case of William B. Stokes v. Amos Kendall, and in which case we have this day rendered our verdict for the plaintiffs for $11,000, do hereby certify that said verdict was not founded on any idea that the defendant performed the acts complained of by the plaintiffs, and for which we gave damages as above stated, with any intent other than a desire faithfully to perform the duties of his office of Postmaster General, and protect the public interests committed to his charge, but the said damages were given by us on the ground that the acts complained of were illegal, and that the said sum of $11,000 was the amount of actual damage to plaintiffs estimated by us to have resulted from said illegal acts."

Upon the trial the defendant took three bills of exceptions.

The 1st exception was to the competency of the evidence to sustain the action. The evidence offered by the plaintiffs was:

1. A transcript of the record in the mandamus case.

2. The report of Virgil Maxcy, Solicitor of the Treasury.

3. Sundry letters and documents.

4. Oral testimony relating to the partnership.

The defendant offered four prayers to the court, praying instructions to the jury that the defendant was not responsible to the plaintiffs in the right in which they then sued under the 1st count; that he was not liable under the 5th count for refusing to comply with so much of the award of the solicitor as he, on the ground of want of jurisdiction in the said solicitor, refused to comply with; that he was not liable for consequential damages; and that the plaintiffs had no joint right of action.

All of which prayers were refused by the court, to which refusal the defendant excepted.

Page 44 U. S. 90

2d Bill of Exceptions.

The defendant then offered in evidence sundry depositions and papers.

1. The depositions of Andrew Jackson, Martin Van Buren, and B. T. Butler.

2. Correspondence between Mr. Kendall and the Attorney General.

3. The Attorney General's opinion, Document No. 123, 26th Congress, 2d session, House of Ex.Doc. page 1010.

4. Letter from the Solicitor of the Treasury.

5. Reports of post office committees of Senate and House.

6. The evidence of Francis S. Key, Esq.

Upon all which evidence the defendant founded four prayers:

1. That plaintiffs were not contractors.

2. That defendant was not liable if he acted from a conviction that it was his official duty to set aside the extra allowances.

3. That he was not liable if he acted from a conviction that the solicitor had no lawful jurisdiction to audit and adjust the items &c.

4. That he was not liable for any of his acts, if the jury believe that he acted with the bona fide intention to perform duly the duties of his office, and without malice or intention to injure and oppress the plaintiffs.

All of which prayers the court refused to grant, and to the refusal the defendant excepted.

3d Bill of Exceptions.

The plaintiffs offered evidence to prove their special expenses and losses, such as counsel fees, tavern bills, discounts &c., to the admission of which evidence the defendant objected; but the court overruled the objection and allowed it to be given. To which overruling the defendant excepted.

The case came up upon all these grounds.

Page 44 U. S. 93

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