Fisher v. City of St. Louis
| Decision Date | 31 October 1869 |
| Parties | WILLIAM T. FISHER, Respondent, v. THE CITY OF ST. LOUIS Appellant. |
| Court | Missouri Supreme Court |
Appeal from St. Louis Circuit Court.
Reber, city counselor, for appellant.
The action should have been brought for failing to issue and deliver to plaintiff proper tax bills, and not for work done.
Grace, and Clover, for respondent.
On the 17th of September, 1866, the plaintiff made two contracts with the city for filling up certain ponds situated on private property within the city limits, which had been considered as nuisances. The contracts provided that the work should be paid for “in special tax bills assessed against the owner or owners of the property where the work was done,” and that the delivery of such tax bills to the contractor should be in “full payment” for such work.
The plaintiff performed the service contemplated by the contract, and received, as in payment, certain tax bills, which proved to be invalid, uncollectable, and worthless, having been issued without competent legal authority. This suit is brought to recover the contract price of the work, accompanied with an offer to surrender the tax bills, which are alleged to be illegal and void. The answer denies the alleged invalidity of the tax bills, and avers that the delivery of them to the plaintiff, and their acceptance by him, constituted full payment and satisfaction of the claim sued on.
The precise ground of defense alleged in the answer, however, is not insisted upon here. It is not here claimed either that the bills were valid, or that their acceptance constituted a payment and satisfaction of the plaintiff's demand. It is claimed, nevertheless, that the city had the requisite power to issue legal tax bills binding on the property-owners; and that, having that power, it was not bound to pay in any other manner than in the bills, as stipulated in the contract; and that the plaintiff can therefore have no right of action, notwithstanding the invalidity of the bills delivered to him, “until he demands other bills and they are refused him.”
This line of defense is wholly outside the issues made by the pleadings. It is not alleged in the answer, and is not available here. The defense alleged in the answer is payment. That defense has broken down, and the point now made in respect to demand and refusal comes too late, whatever might be thought of its merits. The objection is that the plaintiff failed to...
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