Bank of Commerce v. Ruffin
Decision Date | 14 April 1915 |
Citation | 175 S.W. 303,190 Mo.App. 124 |
Parties | BANK OF COMMERCE, Respondent, v. J. B. RUFFIN, Appellant |
Court | Missouri Court of Appeals |
Appeal from Greene County Circuit Court.--Hon. Arch A. Johnson Judge.
AFFIRMED.
STATEMENT.--The plaintiff bank purchased from the firm of Davis & Ruffin a special tax bill issued by the city of Springfield against real estate owned by Elizabeth R. Baxter, paying the firm therefor the amount stated on the face of the tax bill less six per cent, which is the usual discount. Payment of the tax bill was refused and the bank brought suit against Elizabeth R. Baxter to subject the property to the lien of the tax bill described therein, covering the cost of the improvement first having notified J. B. Ruffin that it was unable to collect the tax bill against the Baxter lot and demanding that Ruffin take up the tax bill and pay back plaintiff's money, which Ruffin refused to do. In the action brought by the bank (as relator) against Elizabeth R. Baxter, the defendant herein was a witness for the relator in trying to uphold the validity of the tax bill and was thoroughly familiar with the steps that were being taken and the proceedings that were instituted and carried on for the enforcement of the tax bill against the lot. That suit resulted in a finding in favor of Elizabeth R. Baxter and the tax bill was declared void because the contractors, Davis & Ruffin (the Ruffin of that firm being the defendant herein) had placed the improvement (a sidewalk) partly on private property. The facts of the case with reference to that matter will be found stated in our opinion in the Baxter case. [City of Springfield ex rel. Bank of Commerce v. Baxter 180 Mo.App. 40, 165 S.W. 366.] The tax bill having been declared void in that suit, the bank then demanded of the defendant Ruffin a return of the money it paid for the instrument together with the expense and cost of the litigation in the Baxter case, which was refused. This proceeding was then instituted and resulted in a judgment for the plaintiff bank. The defendant Ruffin has appealed to this court.
The tax bill assigned to the plaintiff bank is as follows:
The assignment of the tax bill is as follows:
The recovery was for only the amount paid by the plaintiff for the tax bill, no allowance being made for the expense and cost of the Baxter suit.
The plaintiff's petition herein bases recovery on the principle that there is an implied warranty of the validity of this special tax bill which plaintiff claims arises from the purchase and the assignment to it. It is conceded that there was no fraud practiced, nor was any express warranty made. The plaintiff bank asserts that there was a breach of an implied warranty, and this the defendant denies.
On reading the tax bill it will be noted that it definitely described the work done, the amount due, and the property to be charged, and states that it is a lien against that property. The assignment expressly sold the tax bill and the lien thereof.
There is no question in this case involving the validity of the proceedings of the city council, as they appeared to be regular in all respects.
The latent defect which invalidated this chose in action was only the act of the contractors and the city in failing to construct the sidewalk in the public street.
Judgment affirmed.
Wm. B. Skinner for appellant.
(1) To render a tax bill nonenforceable, in toto, on the ground that part of the improvement encroached upon private property, even before the adoption of the quantum meruit statute of 1911, there would have to be an entire absence of facts and circumstances tending to show that the part improperly placed could be removed and that the remainder would make a symmetrical, sightly and durable walk, or that the part properly placed could not be added to or pieced out so as to produce such a result. Unless the record shows affirmatively that no such showing could be made or was possible in the case at bar, it was error for the trial court to treat the tax bill in suit as a nullity and of no substantial value. Springfield ex rel. Bank v. Baxter, 180 Mo.App. 40; Boonville ex rel. Cosgrove v. Rogers, 125 Mo.App. 142. (2) In the absence of an express warranty the vendor of a bill, bond or other public security, is liable ex delicto for bad faith and ex contractu there is an implied warranty on his part that they belong to him and they are not forgeries. Where there is no express stipulation, there is no liability beyond this. Otis v. Cullum, 92 U.S. 447; Lamert v. Heath, 15 Mees and W. 486; Gompert v. Bartlett, 2 El. and Bl. 849; Orleans v. Platt, 99 U.S. 676; Insurance Co. v. Middleport, 124 U.S. 534; Meyers v. Richardson, supra; Merchants Ex. Nat. Bank v. Burgen, 115 U.S. 384; Ruohs v. Bank, 94 Tenn. 57; Richardson v. Marshall County, 100 Tenn. 346; Tiedeman on Commercial Paper, par. 244; 2 Mechem on Sales, page 1145; Jones on Corporation Bonds, par. 220; Daniel on Negotiable Instruments, par. 734; Littauer v. Goldman, 72 N.Y. 506; Ogden on Negotiable Instruments, page 116.
Lewis Luster for respondent.
(1) Respondent is bound by the judgment or the result of the litigation in the case of City ex rel. Bank v. Baxter, having had due notice of said action and full opportunity to prosecute or to assist in the prosecution thereof. Gantt v. Insurance Co., 68 Mo. 534; Strong v. Insurance Co., 62 Mo. 289, and 4 Mo.App. 7; Garrison v Transfer Co., 94 Mo. 130; St. Joseph v. Railroad, 116 Mo. 636; Railroad v. News Co., 151 Mo. 390; State ex rel. v. Barker, 26 Mo.App. 487; Landis v. Hamilton, 77 Mo. 565; Stewart v. Thomas, 44 Mo. 42; Lebanon v. Mead, 4 A. 392; Robberson v. Chicago, 4 Wallace, 657; Brooklyn v. Railroad, 47 N.Y. 475; Andrews v. Gillispie, 47 N.Y. 487; Warner v. McGary, 4 Vt. 507; Marsh v. Smith, 34 N.E. 866; Richmond v. Ames, 41 N.E. 671; Salle v. Light's Exrs., 39 Am. Dec. 317; Prescotte v. Leconte, 82 N.Y.S. 411; Daskham v. Ullmann, 43 N.W. 321; Carpenter v. Pier, 73 Am. Dec. 288; 11 Cyc. 1157; 23 Cyc. 1270. (2) In the absence of an expressed warranty the assignor of a chose in action for a valuable consideration impliedly warrants to the assignee that the chose assigned is a valid and subsisting obligation in his favor against the debtor to the extent to which it purports to be such. That he has a right to demand what it calls for; that its face is a true description of its character, both in respect to its genuineness, to its validity and legal operation. 4 Cyc. 82; Bank v. Burress, 164 Mo.App. 698; Daskham v. Ullmann, 43 N.W. 321; Wood v. Sheldon, 42 N.J. 421; Boyd v. Anderson, 3 Am. Dec. (Tenn.) 762; Claflin v. Godfrey, 21 Pic. (Mass.) 14; Galbreath v. Wallrich, 102 P. 1089; Giffert v. West, 33 Wis. 617; Hunt v. Burk, 22...
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