Brink v. Kansas City

• Decision Date: 14 February 1949
• Docket Number: 40547
• Citation: 217 S.W.2d 507,358 Mo. 845
• Parties: Arthur T. Brink, Trustee, Respondent, v. Kansas City, Missouri, a Municipal Corporation, Appellant
• Court: Missouri Supreme Court

217 S.W.2d 507

358 Mo. 845

Arthur T. Brink, Trustee, Respondent, v. Kansas City, Missouri, a Municipal Corporation, Appellant

No. 40547

Supreme Court of Missouri

February 14, 1949

Appeal from Jackson Circuit Court; Hon. Allen C. Southern Judge.

Reversed and remanded (with directions).

David M. Proctor, City Counselor, Benj. M. Powers, Associate City Counselor, and John J. Cosgrove, Assistant City Counselor for appellant.

(1) The five year Statute of Limitations is a complete bar. Sec 1014, R.S. 1939; 54 C.J.S. 9, sec. 108; 54 C.J.S. 280; 54 C.J.S. 11, sec. 109; Coleman v. Kansas City, 353 Mo. 150, 182 S.W.2d 74; Womack v. Callaway County, 159 S.W.2d 630; Ottenad v. Mt. Hope Cemetery, 176 S.W.2d 62. (2) The statute was not tolled until the illegal character of the tax bills had been judicially determined. Beecher v. County, 2 N.W. 1037; Sioux City v. O'Brien County, 92 N.W. 857; Broadwell v. Board of Commissioners, 211 P. 1040; Sperry v. Mattson, 288 P. 755; Boston Safe Deposit Co. v. Boyd, 32 P.2d 218; Simmons v. Wisconsin Tax Commission, 244 N.W. 610. (3) The property owners could, in the same action, have litigated the question of the validity of the tax bills and have prayed for the recovery of the payments. Flinn v. Gillen, 320 Mo. 1047, 10 S.W.2d 923; Mudd v. Wehmeyer, 323 Mo. 704, 19 S.W.2d 891. (4) The property owners could have filed individual actions, or a joint action such as the one at bar, and procured a stay thereof until the decision in the Ruckels case. For this additional reason they were not under duress. 1 C.J.S. 1406, sec. 133; State ex rel. U.S. Fire Ins. Co. v. Terte, 351 Mo. 1089, 176 S.W.2d 25; Marlay v. Norman Land Co., 232 S.W. 704; Sharkey v. Kiernan, 97 Mo. 102; Sullivan v. Algren, 160 F. 366; Mound City Co. v. Castleman, 187 F. 921. (5) The court erred in allowing interest on the respondent's claims from the date of payment instead of from the date of demand. 47 C.J.S. 59, sec. 47; Sec. 3226, R.S. 1939; Coleman v. Kansas City, 353 Mo. 150, 182 S.W.2d 74; Coleman v. Kansas City, 348 Mo. 916, 156 S.W.2d 644; Sherman v. International Life Ins. Co., 291 Mo. 139, 236 S.W. 634; Simmons Hardware Co. v. St. Louis, 192 S.W.2d 394.

Donald W. Johnson, Alvin C. Trippe, Hale Houts, and Hogsett, Trippe, Depping & Houts for respondent.

(1) None of the claims in suit was barred by limitation. Ruckels v. Pryor, 351 Mo. 819, 174 S.W.2d 185. (2) The causes of action did not accrue until the decision and final judgment in the Ruckels case. Boonville Nat. Bank v. Schlotzhauer, 317 Mo. 1298, 298 S.W. 732; Balfour v. City of Portland, 28 F. 738; Eyerly v. Board of Supervisors, 42 N.W. 374; 54 C.J.S. 15; Baile v. Insurance Co., 73 Mo. 371; Alexander v. Rolfe, 74 Mo. 495; Scheer v. Trust Co. of St. Louis, 330 Mo. 149, 49 S.W.2d 135; Lesem v. Neal, 53 Mo. 412; State ex rel. Nichols v. Adams, 71 Mo. 620; Estes v. Nell, 140 Mo. 639, 41 S.W. 940; Miners' Bank of Carterville v. Clark, 216 Mo.App. 130, 257 S.W. 139; Heman v. Schulte, 166 Mo. 409, 66 S.W. 163; Givens v. Rogers, 192 Mo.App. 319, 182 S.W. 115; Woolum v. Tarpley, 196 S.W. 1127; Waugh v. Williams, 119 S.W.2d 223; Powell v. Joplin, 335 Mo. 562, 73 S.W.2d 408; 54 C.J.S. 14; Restatement of the Law, "Restitution," Sec. 74(n); Ruckels v. Pryor, supra; Brink v. Kansas City, 355 Mo. 860, 198 S.W.2d 710. (3) The statute of limitations did not run for the additional reason that until the Ruckels decision and final judgment plaintiff's assignors were without adequate remedy to recover their payments and therefore continued to be under duress. Brink v. Kansas City, 355 Mo. 860, 198 S.W.2d 710; 54 C.J.S. 200; Coleman v. Crescent Insulated Wire & Cable Co., 350 Mo. 781, 168 S.W.2d 1060; Womack v. Callaway County, 159 S.W.2d 630; The Eureka Bank v. Bay, 90 Kan. 506, 135 P. 584; 54 C.J.S. 14; Lawrence v. Doolin, 5 P. 484. (4) The running of the statute of limitations was also prevented by improper acts of the City which prevented the commencement of actions. Sec. 1031, R.S. 1939; Nelson v. Beveridge, 21 Mo. 22; Brink v. Kansas City, supra; Ruckels v. Pryor, supra. (5) Judgment of the circuit court dismissing the Ruckels petition barred any other taxpayer suit until the judgment was reversed and final judgment was entered pursuant to the mandate of this court. George v. Waller, 19 S.W.2d 284; 54 C.J.S. 281; Campbell v. Durant, 110 Kan. 30, 202 P. 841; Liquid Carbonic Co. of Texas v. Logan, 79 S.W.2d 632; Harvey v. Pflug, 37 La. Ann. 904; St. Paul M. & M. Ry. Co. v. Olson, 87 Minn. 117, 91 N.W. 294; Sec. 1031, R.S. 1939; Nelson v. Beveridge, 21 Mo. 22; Bobb v. Taylor, 193 S.W. 800; Rodney v. Gibbs, 184 Mo. 1, 82 S.W. 187; Powell v. Joplin, 335 Mo. 562, 73 S.W.2d 408. (6) The court did not err in allowing interest on the claims from the time of payment instead of from the time of filing suit. Jersey City v. O'Callaghan, 41 N.J.L. 349; 47 C.J.S. 23; Simmons Hardware Co. v. St. Louis, 192 S.W. 394; Wolfersberger v. Miller, 327 Mo. 1150, 39 S.W.2d 758; Arthur v. Wheeler & Wilson Mfg. Co., 12 Mo.App. 335; Becker v. Thompson, 336 Mo. 27, 76 S.W.2d 357; Pullis v. Somerville, 218 Mo. 624, 117 S.W. 736; Jefferson City Savings Assn. v. Morrison, 48 Mo. 273; Wabash Ry. Co. v. Koenig, 274 F. 909; Arkadelphia Co. v. St. Louis, S.W. Ry. Co., 249 U.S. 134; Dubinsky Realty Co. v. Lortz, 129 F.2d 669; Brink v. Kansas City, supra; Ruckels v. Pryor, supra.

OPINION

Westhues, C.

Respondent's brief contains a fair statement of the facts in this case and we adopt it as the statement of the court. It reads as follows:

"This is an action for money had and received, in several counts, prosecuted by Arthur T. Brink as trustee and assignee of various property owners, to recover back monies paid to the city by the assignors on tax bills issued by the city to pay for the construction of the second section of the Brookside sewer in Kansas City. Defendant city has appealed from a judgment for the plaintiff for the full amount sued for including interest from the dates of the payments.

"This is the third case on appeal in this Court involving taxes levied for the construction of the second section of the Brookside sewer.

"The first case, Ruckels v. Pryor, et al., 351 Mo. 819, 174 S.W.2d 185, was a suit in equity by Ruckels, a property owner in the sewer district, on behalf of himself and all other property owners, against the contractor and the city, to cancel the sewer contract and the levy of taxes for its construction on the ground that the contract was the result of a conspiracy between city officials and certain favored contractors to eliminate competitive bidding and to monopolize the control of the letting of all contracts for public improvement. The Circuit Court dismissed the petition but Division No. 1 of this Court sustained the plaintiff's contentions and reversed the judgment with directions to the Circuit Court to grant the relief prayed for (174 S.W.2d at 186-199). The Circuit Court thereupon entered judgment in accordance with the mandate.

"The second case in this Court was Brink v. Kansas City, 198 S.W.2d 710. This was an action similar to the case at bar, brought by Mr. Brink after the Ruckels decision, as trustee and assignee of other property owners, to recover back monies paid by the assignors prior to the Ruckels decision upon tax bills issued by the city for the payment for the construction of the sewer. Division No. 1 of this Court affirmed a judgment for plaintiff for the amount sued for.

"In this first Brink case the city contended that the payments were voluntary but the court held that the payments were made under duress, for the reason that until the decision of the Ruckels case the tax bills were liens upon the property and the property owners because of the expense of litigation had no adequate legal or equitable remedy to avoid the liens or resist payment of the taxes (198 S.W.2d at 711-716). The court also held that the fact that the city had paid over the sums received to the fraudulent contractor constituted no defense to the action, because the city was 'a party to the fraud and conspiracy which contaminated . . . the taxbills' (198 S.W.2d at 716-17).

"As in the first Brink case, the petition in the case at bar averred that the decision and final judgment in the Ruckels case constituted an adjudication that the sewer contract and resulting tax levy and bills were invalid, and that the tax payments had been made under duress.

"On its appeal in the case at bar the city does not question the correctness of the decisions in the Ruckels case and the first Brink case. The city in effect concedes that under the decision and final judgment in the Ruckels case plaintiff's assignors in the case at bar had valid claims for the recovery of the monies paid. The only questions raised by it on this appeal are in respect to the statute of limitations and the date from which interest was allowable.

"The city contends that all payments made by plaintiff's assignors more than five years prior to suit are barred by the five-year statute of limitations applicable to actions upon contracts, express or implied, other than for the payment of money (Section 1014, R.S. Mo., 1939).

"Plaintiff's petition averred:

'Prior to said Ruckels decision said assignors had no adequate remedy to recover back said payments and were under duress. Their causes of action did not accrue until said Ruckels decision became final.'

In this case, as in the first Brink case (198 S.W.2d at 711, 715) the evidence established that the tax levy was regular upon its face and binding upon the property owners until the Ruckels decision, and that the burden of litigation in avoidance of the taxes prior to the Ruckels decision would have been too great to have been undertaken by the property owners and left...