Bank of Commerce v. Ruffin

Decision Date14 April 1915
Citation175 S.W. 303,190 Mo.App. 124
PartiesBANK OF COMMERCE, Respondent, v. J. B. RUFFIN, Appellant
CourtMissouri 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:

"No. 11321. SPECIAL TAX BILL.

"For the Construction of Sidewalks.

"City of Springfield, in Greene County, Missouri.

"It is hereby certified that there has been constructed by Davis & Ruffin, contractors, a cement first-class sidewalk on the east side of Myrtle street in the city of Springfield, Missouri, 167.7 feet of sidewalk and 12.42 yards of grading, being in front of the following described real estate situated in said city and owned by Elizabeth R. Baxter, viz.: Lot 1, Oaklands, said real estate abutting on said improvements; that the price for said work as named in the contract therefor is 167.7 feet at 44c per lineal foot and twenty-five cents per cubic yard for grading; that the council of said city by Ordinance No. 5485, entitled 'An ordinance levying and assessing a special tax against the lots, blocks and pieces of ground hereinafter described to pay for constructing cement four-foot first-class sidewalk on both sides of Myrtle street between Cherry street and Monroe street, and to direct and authorize the mayor and clerk to issue special tax bills therefor and deliver the same to the contractor entitled thereto,' approved third of November, 1909, has levied a special tax upon the lots, blocks and pieces of ground upon the side of the street along and upon which such improvements have been made, for the amount due the contractor on said contract, apportioning such amount among the several lots, blocks and pieces of ground liable therefor, according to the front foot thereof, charging such lots and pieces of ground with their proper and lawful share of the amount due on said contract; that the above-described land has been by said ordinance charged with, and the same is now charged with seventy-six and eighty-nine one-hundredths (76.89) dollars, its proper and lawful share of the cost of such improvement, this tax is made a lien against the above described lot and shall be assignable and collectable in any action brought in the name of the city to the use of the holder thereof, in any court of competent jurisdiction, and in such action shall be prima-facie evidence of the regularity of the proceeding for such special assessment of the validity of the bill, of the doing of the work, of the furnishing of the material charged therefor, and of the ability of the above-described property to the charge herein stated, which sum if not paid in thirty days from the date of issue and presentation, shall bear interest at the rate of eight per cent per annum.

"This bill shall be a lien against said lot or piece of ground for five years from date of issue, unless sooner paid.

"Issued by direction of the council of said city this 5th day of November, 1909.

"G. W. HACKNEY, City Clerk.

"Countersigned, LOUIS P. ERNST, Mayor."

The assignment of the tax bill is as follows:

"ASSIGNMENT

"For value received, we assign this special tax bill and the lien thereof to Bank of Commerce, Springfield, Missouri, and authorize it to sign our name and the receipt and certificate of satisfaction.

"DAVIS & RUFFIN, Contractors."

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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