Brands v. City of Louisville

• Decision Date: 29 May 1901
• Citation: 63 S.W. 2,111 Ky. 56
• Parties: BRANDS et al. v. CITY OF LOUISVILLE. [1]
• Court: Kentucky Court of Appeals

63 S.W. 2

111 Ky. 56

BRANDS et al. v. CITY OF LOUISVILLE. ^[1]

Court of Appeals of Kentucky.

May 29, 1901

Appeal from circuit court, Jefferson county, chancery division.

"To be officially reported."

Action by Margaret Brands and others against the city of Louisville to recover money paid under mistake of law. Judgment for defendant, and plaintiffs appeal. Affirmed.

Stanley E. Sloss, Zack Phelps, W. W. Thum, and Lane & Harrison, for appellants.

H. L Stone, for appellee.

HOBSON. J.

On July 13, 1891, the general council of the city of Louisville passed an ordinance for improving the streets of the city with vitrified brick, which contained, among others, this provision: "The contractor shall guaranty the performance of his contract according to this ordinance, and the pavement therein specified and the material composing the same shall be kept in good repair for a period of five years from the completion of the work and the acceptance by the general council; and to protect the city as to the character of said work and material and such repairs as may be needed the city engineer to be the judge, the contractor shall deposit bonds of the city of Louisville or of the United States amounting to ten per cent. of the original contract price of the entire work with the city treasurer, who shall hold the same, principal and interest, to be applied as far as need be in the necessary repairs of said work, and at the end of the said five years the unexpended balance, if any, to be subject to the order of said contractor." Pursuant to this ordinance, and others of similar character, a number of vitrified brick streets were built in Louisville, and the cost of their construction apportioned among the owners of property fronting thereon. After this, in Gosnell v. City of Louisville (Ky.) 46 S.W. 722, this court held that where there was an improvement of the carriageway of the public street by original construction with vitrified brick pursuant to these ordinances, the 10 per cent. of the cost was for the reconstruction or repair of the street for five years, and that for such cost of reconstruction or repair the city was alone liable, and no part of it could be collected from the property owners. Appellants who had paid their apportionments, thereupon filed this action against the city suing in equity, not only for themselves, but all other property owners of the city who had paid similar assessments, and sought to recover from the city the amounts so paid the contractors on the grounds that, at the request of the city, they had paid a debt of the city to the contractor, and that, as the city was alone liable for the debt, and they had paid it by direction of the city, and in ignorance of their rights, the city should reimburse them. The learned chancellor sustained a general demurrer to the petition, and dismissed the action.

In Underwood v. Brockman, 34 Ky. 318, 29 Am. Dec. 407; Ray v. Bank, 42 Ky. 514, 39 Am. Dec. 479, and a number of subsequent cases it has been held that, where money is paid under a clear mistake of law or fact, which in equity and good conscience should not be retained by the party receiving it, a recovery may be had. This may be regarded the settled law of this state, although the rule, so far as mistakes of law are concerned, is denied in many other states. But, while this rule has been consistently maintained by the court, it has not been applied to taxes or public dues which have been voluntarily paid where they were only collectible by action. Thus, in City of Louisville v Zanone, 58 Ky. 151, the plaintiff sought to recover from the city money he had paid to a contractor for the improvement of the street in front of his property on the ground that the ordinance under which the improvement was made had been passed by only one board of the general council, and was therefore invalid. It was held that, as he had voluntarily paid the assessment, he could not recover. In Hubbard v. Hickman, 67 Ky. 204, 96 Am. Dec. 297, the plaintiff sued to recover municipal taxes which he had paid for 10 years. It was held that the law does not imply a promise on the part of the city to make restitution for taxes levied and paid under a mistake of law. This ruling was followed in Moore v. Bath Co. Ct., 70 Ky. 177. In City of Louisville v. Anderson, 79 Ky. 343, a recovery was sought of taxes paid under a void ordinance. A recovery was had. But the court said: "Where a party is entitled to a day in court, and can litigate the demand about to be enforced against him, but, instead of doing so, voluntarily pays it, he is without a remedy. When he can plead and make his defense, a payment under protest will be regarded as...