Edwards v. City of Kirkwood

• Decision Date: 05 April 1910
• Citation: 127 S.W. 378,147 Mo.App. 599
• Parties: GEORGE L. EDWARDS, Appellant, v. THE CITY OF KIRKWOOD and R. PAGENSTECHER, Collector, Respondents
• Court: Missouri Court of Appeals

127 S.W. 378

147 Mo.App. 599

GEORGE L. EDWARDS, Appellant, v. THE CITY OF KIRKWOOD and R. PAGENSTECHER, Collector, Respondents

Court of Appeals of Missouri, St. Louis

April 5, 1910

Appeal from St. Louis County Circuit Court.--Hon. J. W. McElhinney Judge.

REVERSED AND REMANDED.

STATEMENT.--This is a suit on an express contract for attorney's fees. The court sustained a demurrer to the petition and plaintiff appeals. Omitting formal parts, the petition is as follows:

"Now comes the plaintiff and, by leave of court first had and obtained, files this, his amended petition, and says:

"Plaintiff states that the defendant, the city of Kirkwood, is now, and was at all the times hereinafter mentioned, a city of the fourth class, duly organized under the laws of the State of Missouri, providing for the organization of cities of said class; that the defendant, Rudolph Pagenstecher, is now, and was at all the times hereinafter mentioned, city collector for said city.

"For cause of action, plaintiff states that on or about the 20th day of February, A. D. 1905, the board of aldermen of the city of Kirkwood duly passed, and the mayor thereof approved a certain ordinance, being numbered 302 and entitled 'An Ordinance Creating and Defining the Courses and Providing for the Construction of Public Sewers in the City of Kirkwood,' and whereby it was declared to be necessary for sanitary purposes that public sewers be established and constructed in said city and whereby the same were established, the courses, routes and dimensions set forth and the manner and method of constructing the same also set forth, as well as the manner and method of paying for the same, a copy of which said ordinance is herewith filed and referred to for greater certainty as to the terms and provisions thereof, and marked 'Exhibit A.'

"That on the day of , A. D., 1905, in pursuance to the provisions of the above-mentioned ordinance, the defendant, the city of Kirkwood, made and entered into a contract with Thomas J Byrne for the construction of the public sewers by said ordinance established, and whereby said Thomas J. Byrne contracted and agreed to build and construct for said city the public sewers created and established by said ordinance in pursuance to the terms and provisions of said ordinance and whereby said city agreed to pay said Thomas J. Byrne therefor the sum of $ payable monthly, as said work progressed, as provided in said contract a copy of which is herewith filed and referred to for greater certainty as to its terms and provisions, and marked 'Exhibit B.'

"That thereafter, for the purpose of providing a fund and the money with which to pay for the construction of said public sewers and on or about the first day of May, A. D. 1905, the board of aldermen of the city of Kirkwood duly passed, and the mayor thereof approved, a certain ordinance, being numbered 318, and entitled 'An Ordinance Levying a Special Sewer Tax to Provide a Fund for the Building of Public Sewers in the City of Kirkwood,' and whereby a tax, equaling the sum of thirty-four thousand three hundred dollars ($ 34,300), was levied upon all the property made taxable for state purposes over the whole of the defendant, the city of Kirkwood, and the city clerk of said city ordered to extend the said tax upon said property and make out appropriate and accurate tax books setting forth in suitable columns, opposite the names of each person and the item of taxable property as returned by the assessor and board of equalization, the amount of said taxes due thereon, apportioning the said sum of money levied among the several owners of all said property according to the respective valuation thereof, and whereby it was provided when said taxes should be paid.

"By said ordinance it was further provided that the city clerk, as soon as said tax books were completed, should deliver the same to the city collector and charge the city collector with the full amount of taxes levied, and the said city collector directed, as soon as said tax should become due and payable, to proceed to collect the same, a copy of which said ordinance is herewith filed and referred to for greater certainty as to its terms and provisions, and marked 'Exhibit C.'

"That at all of the times hereinbefore and hereinafter mentioned, the St. Louis Union Trust Company was a corporation duly organized under the laws of the State of Missouri and engaged in a general trust company business, with its chief office and place of business located in the city of St. Louis and State of Missouri, and the executor of the estate of A. S. Mermod, deceased, having been duly appointed as such by the probate court of the county of St. Louis, Missouri, and having duly qualified and entered upon the discharge of the duties of its said office.

"In pursuance to the last above-mentioned ordinance, being Ordinance No. 318, the clerk of the city of Kirkwood prepared and delivered to the city collector the tax books in said ordinance provided for; that from said books it appeared that a tax for the purpose of paying for the construction of said public sewers, in the aggregate amounting to about the sum of nine thousand dollars ($ 9000) had been levied against the estate of A. S. Mermod, deceased; that thereafter and on or about the day of --, 1905, the St. Louis Union Trust Company, as executor of the estate of A. S. Mermod, deceased, commenced a proceeding by certiorari in the circuit court of St. Louis county, Missouri, against the defendant, the City of Kirkwood, and its officers, entitled State of Missouri ex rel. Union Trust Company, etc., Relator v. The City of Kirkwood, C. G. Ricker, J. G. Hawken and R. Pagenstecher, the general object and nature of which said proceeding was to have the circuit court of St. Louis County, Missouri, quash and declare to be illegal, null and void the said tax levied by said ordinance, numbered 318, above mentioned, and particularly the portion of said tax levied upon and taxed against the estate of said A. S. Mermod, deceased, a copy of the petition of the relator in which said cause and the return of the respondents thereto is herewith filed and referred to for greater certainty as to the terms and provisions thereof, and marked 'Exhibit D.'

"That subsequent to the passage and approval of said last mentioned ordinance No. 318, and the levying of said tax and making the tax books therein provided for, and the delivery of the same to the collector of the city of Kirkwood, a large number of the owners of property in said city, upon whose property said tax had been levied, paid the amount levied thereon to the collector of said city when the remaining owners of property in said city, upon whose property said tax had been levied either refused or neglected to pay the same. It thereupon became necessary for the city to adopt means and measures for the collection of the remainder of said tax amounting to about twenty thousand dollars ($ 20,000) and to employ counsel to aid the collector of said city in further collecting the same, and to defend the suit commenced against said city by the St. Louis Union Trust Company above referred to, and such other suits as might be commenced against said city to prevent the collection of the remainder of said tax, the property-owners, or some of them, of said city who had failed or refused to pay said tax, having threatened to commence other suits for said purpose against said city; that owing to the fact that the contractor with said city, for the construction of said public sewers, had entered upon the performance of the terms and conditions of his said contract and the construction of said public sewers, and said city, in pursuance to said contract, was required to pay him for the work performed under said contract, monthly, it was necessary that said city should collect said tax expeditiously and without suit, if possible, that it might be enabled to perform its said contract with said contractor and pay him for the work done monthly as provided in said contract; that to that end, and with said objects in view, on or about the 11th day of September, A. D. 1905, the board of aldermen of the city of Kirkwood duly passed, and the mayor thereof approved, a certain ordinance, being numbered 323, and entitled 'An Ordinance Directing the Collector of the City to Enforce Payment of the Unpaid Portion of the Special Public Sewer Taxes,' and whereby the collector of said city was authorized and required to employ an attorney to aid, assist and advise him in the enforcement and collection of said taxes levied by said Ordinance No. 318 of said city above mentioned, and authorized and required to pay to such attorney as he might employ therefor 10% on all such special public sewer taxes collected subsequent to the date of the employment of said attorney; that in pursuance of said last above mentioned ordinance, the defendant, R. Pagenstecher, on the 16th day of September, A. D. 1905, made and entered into with plaintiff a certain contract whereby he employed plaintiff to aid, assist and advise him in the enforcement and collection of the unpaid portion of said special public sewer taxes, and agreed to pay plaintiff, for such services as he might render him in that behalf, the sum of ten per cent on all special public sewer taxes collected by suit or otherwise, subsequent to the date of said contract; that the defendant, the city of Kirkwood, and the defendant, R. Pagenstecher, as well as the plaintiff, intended and understood that, by virtue of the ordinance and contract last above mentioned, it was the duty of the plaintiff to defend the case commenced against said city and its officers by the St. Louis Union Trust Company above mentioned, and any other suit which might be commenced...