to sell said bonds was a matter of record in the city clerk's of fice, and was a resolution of the common council acting as such, passed in October or December, 1857; that plaintiff' did not pay more than $300 in money, and witness thought from $200 to $300; that some of the scrip delivered to him by plaintiff for the bonds was of the recent issue, and none of it more than a year old; that a certain sum was allowed the mayor for services in executing the bonds, and witness was not sure that scrip was issued therefor, but had embraced the amount in his statement as to the amount of scrip delivered to him by plaintiff; that he thought the mayor, as such, was not at the time entitled to any salary; that the five bonds above mentioned, when they came back to the city, were surrendered or delivered to him (witness), and he gave a receipt for them to the railroad company; that he could not refer to any act or resolution of the common council from which he obtained the impression that the bonds were sold to plaintiff to procure means for municipal purposes. On redirect examination, witness stated that the sum allowed plaintiff as mayor for special services in executing the bonds was $100; that it was allowed by the railroad company, and paid by it to the city in this transaction [the return of the bonds to the city]. It appeared further that plaintiff was mayor of said city from the spring of 1857 to the spring of 1859.

The court found that defendant executed and delivered the three bonds in question, and the coupons along with other bonds, to the Kenosha & Rockford R. R. Co., in September, 1857; that said company, in payment for interest which had accrued on said bonds when so delivered, and of certain expenses which had been incurred by the city in and about the execution of the same (including $100 allowed plaintiff as mayor), redelivered to defendant five bonds of $500 each, and coupons, three of which were the bonds described in the complaint; that defendant sold to plaintiff the three bonds last above mentioned, with coupons, in the latter part of 1857, at 80 cents on the dollar, or for $1,200; that plaintiff paid therefor $175 in coupons attached to said bonds, and the balance in cash and city scrip; that the cash so paid (from $200 to $300) was placed in defendant's treasury and used for ordinary municipal

purposes, and the scrip had theretofore been issued for ordinary municipal purposes, except $100 of it, which had been issued to plaintiff for signing bonds as aforesaid. As conclusions of law the court held that said three bonds and the coupons attached were null and void, and of no value whatever; that the scrip issued to plaintiff for signing bonds was also void; that the plaintiff was entitled to judgment for the sum paid by him for the bonds, less said two amounts of $175 and $100, i. e., for $926, with interest, etc. Judgment accordingly, from which the defendant, after excepting to the several findings of fact and conclusions of law, appealed.

COLE, J.-Under the circumstances, we consider the objection that the plaintiff could not recover the consideration paid for the city bonds, without offering to return them to the city, as untenable. The suit was against the city which issued the bonds, and the bonds were put in evidence and declared void and of no value whatever by the circuit court. What further purpose or use can the bonds be put to? They are canceled. We are really at a loss to imagine what earthly benefit the possession of the bonds would be to the city. Perhaps if the city had asked that the bonds be delivered over to its possession after the court had held them to be null and void, the court might have so ordered; although it would seem to be an idle act. But no request of the kind was made, and we cannot see how the city can possibly be prejudiced by the bonds remaining with the record and papers in the cause. The court held that the plaintiff was entitled to a judgment for the amount paid for the bonds less the $175 paid in coupons, and the $100 paid in city scrip, which was allowed the plaintiff for signing the bonds. In other words, the plaintiff was permitted to recover the amount of money and scrip which had been issued for municipal purposes, and which had been paid the city by him for bonds which were of no value. What valid objection can there be to a judgment against the city to that extent? The city has had that amount of money and legal scrip for its city bonds, which turn out to be of no value whatever. It seems to fall under the general rule of law that where a party sells an obligation which turns out to be valueless and not of

such a character as he represents it to be, he is liable to the vendee as upon a failure of consideration. The city bonds, it appears, were void when the agents of the city sold them to the plaintiff. Is it just and equitable that the city retain the money which it has received for its own worthless bonds? The plaintiff took the bonds upon the presumption that they were valid securities, and paid his money, or its equivalent, to the city for them. They turn out to be void for want of power on the part of the city to issue them, and he seeks to recover back the money paid as upon a failure of consideration. Can he not recover the amount he has paid the maker of the bonds for its worthless paper? It seems to us unnecessary to go into the anthorities upon the question. The principle has been fully discussed in Hurd v. Hall, 12 Wis., 112; Lawton v. Howe, 14 Id., 241; Costigan v. Hawkins (ante, p. 74). Upon the ground, therefore, that the amount recovered was paid upon a consideration which has failed, we think the judgment right.

By the court.-The judgment of the circuit court is

AFFIRMED.

WHEN THE CONSIDERATION PAID MAY BE RECOVERED.

TWENTY-FIRST SELECTED CASE.

PIMENTAL ET AL. V. THE CITY OF SAN FRANCISCO.*

The several cases which have been before this court in relation to the liability of the city of San Francisco to the parties who bid off the city slip property at the attempted sale by the city authorities in December, 1853, under an alleged ordinance, designated as Ordinance No. 481, commented upon and held to have decided and settled the following points:

First. That the ordinance so-called was never passed, and was, therefore, a nullity.

Second. That the sale made in pursuance of it was, therefore, invalid and passed no title to the bidders.

*Reported in 21 Cal., 352 (1863).

Third. That the bidders were entitled to recover back from the city the purchase-money paid by them, and received and appropriated by the city authorities.

Fourth. That they were not precluded from a recovery either: 1st, by reason of any want of privity between themselves and the city; or 2d, by the alleged subsequent adoption by the city authorities of the ordinance directing the sale; or 3d, by reason of a subsequent alleged ratification of the sale by an appropriation of the proceeds; or 4th, by the clause in the city charter restraining the corporation from contracting liabilities beyond the sum of $50,000; or 5th, by the act of the legislature of 1858, authorizing the city treasurer to execute deeds to the purchasers on certain conditions.

Claims against the city of San Francisco by the bidders, at the attempted sale in December, 1853, for the purchase-money paid on such sale, are within the fourth subdivision of the seventeenth section of the limitation act, and are barred by a failure to sue within two years from the date of the receipt of the money by the city. The filing of a complaint in the proper court, without the issuance of a summons thereon, is the commencement of an action within the terms and meaning of the limitation act, and stops the running of the statute.

The complaint in an action to recover back from the city of San Francisco purchase-money paid upon the invalid sale of her city slip property in 1853, was filed April 21, 1856, and alleged that one installment of the purchasemoney was paid December 27, 1853, another February 27, 1854, and a third, April 27, 1854, and that these several payments were received by the city on the respective days of their payment. The referee to whom the case was referred found as a fact that the several payments were made to the city and accepted by her as alleged in the complaint. Held, that the defense of the statute of limitations pleaded by the cites must be sustained as to the first two installments, and disallowed as to the third.

Appeal from the Fourth Judicial District.

THIS is an action to recover the sum of $7,900, alleged to have been received from the plaintiff' by the city of San Francisco upon an alleged sale of a parcel of certain property known as the city slip property, situated within the limits of the said city-$1,975 on the twenty-seventh day of December, 1853; $3,950 on the twenty-seventh day of February, 1854; and $1,975 on the twenty-seventh day of April, 1854. The complaint was filed on the twenty-first of April, 1856, and the summons was issued on the twenty-fourth of December, 1860. The facts of the case are sufficiently stated in the opinion of the court. A more detailed statement of the facts relating to

said alleged sale are found in the report of the case of McCracken v. The City of San Francisco (16 Cal., 591), and in the report of the case of Grogan v. The City of San Francisco (18 Id., 590).

In the present case the plaintiff had judgment, and the defendant appeals.

FIELD, C. J., delivered the opinion of the court; Cope, J., and NORTON, J., concurring.

This is one of the numerous cases which have grown out of the attempted sale by the authorities of the city of San Francisco, in December, 1853, of the property known as the city slip property. The general facts in all of them upon which the liability of the city is asserted, lie within a narrow compass; but the defenses interposed have varied with the different cases, and have not always been consistent with each other. In some of the cases the entire transactions giving rise to or connected with the alleged sale, including the receipt and appropriation of the moneys derived therefrom, have been treated as transactions to which the city was an entire stranger; in other words, a want of privity between the bidders and the city has been asserted. In other of the cases, a subsequent adoption of the ordinance directing the sale has been alleged, and a ratification of the sale by the appropriation of its proceeds. In some the restraining clause of the charter against the incurring of liabilities has been relied upon, and in others, as in the present case, the length of time in which the claim against the city has existed, is set up as a bar to its recovery. In the meantime the indebtedness against the city, if obligatory at all as such, has been increasing at a rapid rate by the accumulation of interest, and the heavy expenses of protracted litigation, until the amount at present exceeds, it is believed, a million of dollars. It is desirable, therefore, not only for the claimants, but for the city, that the controversy between them should be brought to a termination. It may be well, therefore, before proceeding to consider the question immediately arising in the case at bar to briefly state the different positions already considered and settled by this court.