Brink v. Kansas City

• Decision Date: 09 December 1946
• Docket Number: 39794
• Citation: 198 S.W.2d 710,355 Mo. 860
• Parties: Arthur T. Brink, Trustee, v. Kansas City, Missouri, Appellant
• Court: Missouri Supreme Court

198 S.W.2d 710

355 Mo. 860

Arthur T. Brink, Trustee, v. Kansas City, Missouri, Appellant

No. 39794

Supreme Court of Missouri

December 9, 1946

Rehearing Denied January 13, 1947.

Appeal from Jackson Circuit Court; Hon. James W. Broaddus Judge.

Affirmed.

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

(1) The imposition of the special tax assessments did not constitute duress. Claflin v. McDonough, 33 Mo. 412; Franke v. St. Louis, 249 S.W. 379; State ex rel. American Mfg. Co. v. Reynolds, 270 Mo. 589, 194 S.W. 878; Wolfe v. Marshall, 52 Mo. 167; Robbins v. Latham, 134 Mo. 466, 36 S.W. 33; Pritchard v. People's Bank of Holcomb, 200 S.W. 665; Wood v. Kansas City Home Tel. Co., 223 Mo. 537, 123 S.W. 6; Allison v. Tucker, 170 S.W.2d 963; Baldwin v. Scott County Milling Co., 343 Mo. 915, 122 S.W.2d 890; Charter of Kansas City, Secs. 290, 298, 300; Powell v. Joplin, 335 Mo. 562, 73 S.W.2d 408; Interstate Department Stores, Inc., v. Henry, State Treasurer, 272 N.W. 451; Southern Service Co. v. Los Angeles, 97 F.2d 963; Darby v. City of Vidalia, 149 S.E. 23; Newcomb v. Davenport, 89 Iowa 291, 53 N.W. 232; Detroit v. Martin, 34 Mich. 170; Brunson v. Board of Directors of Crawford County Levee Dist., 124 Ark. 424, 153 S.W. 828; Union Pacific v. Dodge County, 98 U.S. 541; Louisville v. Becker, 139 Ky. 17, 129 S.W. 311. (2) The court erroneously excluded material and relevant testimony offered by defendant as to notice to property owners of the invalidity of the contract. Charter of Kansas City, Secs. 243, 245, 248, 251; Rich Hill v. Donnan, 82 Mo.App. 386; Westport v. Mastin, 62 Mo.App. 647; Sedalia v. Donahue, 190 Mo. 407, 89 S.W. 386; Williams v. Hybskmann, 311 Mo. 332, 278 S.W. 377; Weesner v. Central Natl. Bank, 106 Mo.App. 668, 80 S.W. 319. (3) The plaintiff has failed to prove that the payments were induced by the alleged duress. Douglas v. Kansas City, 147 Mo. 428, 48 S.W. 851. (4) The defendant city did not voluntarily impose the lien of the tax bills. (5) Defendant city is not liable because it does not have in its hands the money which the property owners seek to recover. County of Lewis v. Tate, 10 Mo. 404; Marine Company v. Milwaukee, 151 Wis. 239, 138 N.W. 640; Taxation and Assessment, Page & Jones, sec. 1495; City Charter, Secs. 292, 297; American Mfg. Co. v. Reynolds, 270 Mo. 589, 194 S.W. 878; Simmons Hardware Co. v. St. Louis, 192 S.W. 394; State ex rel. Colwell v. Chicago & Alton Railroad Co., 165 Mo. 537, 65 S.W. 989; First National Bank v. Christian County, 106 S.W. 831; Spencer v. City of Los Angeles, 180 Cal. 102, 179 P. 163; Wallace v. Mayor of New York, 5 N.Y.S. 705; Camp v. Township of Algansee, 14 N.W. 672; Herman H. Hettler Lbr. Co. v. Cook County, 336 Ill. 645, 168 N.E. 627; Price v. Lancaster County, 24 N.W. 705; Henderson v. Koenig and St. Louis, 192 Mo. 690, 91 S.W. 88; Hartford Fire Ins. Co. v. Jordan, 142 P. 839; Carey v. Curtis, 44 U.S. 235. (6) Even if plaintiff is entitled to recover, defendant, having used the money to pay for the brookside sewer, is entitled to a set-off for its value. Myers v. Hurley Motor Co., 273 U.S. 18; Stone v. White, 301 U.S. 532; Rose v. McEachern, Collector, 86 F.2d 231; 41 C.J., p. 59; 7 C.J.S., p. 120; 2 R.C.L., p 769; Ryan v. Alexander, Collector, 118 S.W.2d 744; Cone v. Ariss, 126 P.2d 591; Bastanchury v. Times-Mirror Co., 156 P.2d 488.

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

(1) The decision of this court in the Ruckels case conclusively established for the purposes of the case that the tax bills were invalid because the contract was let without competitive bidding as a result of unlawful conspiracy between officials of the city and certain favored contractors. Chamberlain v. Mo.-Ark. Coach Lines, 189 S.W.2d 538; Powell v. Joplin, 335 Mo. 562, 73 S.W.2d 408; Wabash Ry. Co. v. Koenig, 274 F. 909, certiorari denied 257 U.S. 660; In re McMenamy's Guardianship, 307 Mo. 98, 270 S.W. 662. (2) The imposition of the special tax assessments constituted duress. Under general principles recognized by this court. St. Louis Brewing Assn. v. St. Louis, 140 Mo. 419, 37 S.W. 525, 41 S.W. 911; Mississippi Valley Trust Co. v. Begley, 298 Mo. 684, 252 S.W. 76; Atchison, T. & S.F. Ry. v. O'Connor, 223 U.S. 280; American Mfg. Co. v. St. Louis, 238 Mo. 267, 142 S.W. 297; State ex rel. American Mfg. Co. v. Reynolds, 270 Mo. 589, 194 S.W. 878. (3) And under decisions directly in point from other jurisdictions. Adrico Realty Corp. v. New York, 250 N.Y. 29; Underwood Typewriter Co. v. Chamberlain, 92 Conn. 199, 102 A. 600; Joannin v. Ogilvie, 49 Minn. 364, 52 N.W. 217; Peyser v. New York, 70 N.Y. 497; Segfried v. New York, 209 N.Y.S. 429; Effell Realty Corp. v. New York, 299 N.Y.S. 373; Tozer v. Skagit County, 34 Wash. 147, 75 P. 638; Cooley on Taxation (4 Ed.), sec. 1283; United States v. Dewey County, 14 F.2d 784; Thompson v. City of Detroit, 114 Mich. 502, 72 N.W. 320; Mayor of Jersey City v. Riker, 38 N.J.L. 225; Mayor of Jersey City v. O'Callaghan, 41 N.J.L. 349; Marano v. North Bergen Township, 172 A. 817; Blanchard v. City of Detroit, 253 Mich. 491, 235 N.W. 230. (4) And because the circuit court had rendered judgment dismissing the petition in the Ruckels case. George v. Waller, 19 S.W.2d 284; Rodney v. Gibbs, 184 Mo. 1, 15, 82 S.W. 187; Veitia v. Fortuna Estates, 240 F. 256; Bobb v. Taylor, 193 S.W. 800; Hight v. Batley, Wash., 72 P. 1034; And cases cited in Foreword. (5) Appellant city has confessed liability. Summer v. Peoples El. Co., 136 S.W.2d 81; Abernathy v. Schembra, 231 S.W. 1005; Mahan v. Waters, 60 Mo. 167. (6) The court did not err in excluding evidence offered by defendant as to notice to the property owners of invalidity of the sewer contract. Knowledge of invalidity by the taxpayers was immaterial. Coleman v. Crescent Insulated Wire & Cable Co., 350 Mo. 781, 168 S.W.2d 1060; American Brewing Co. v. St. Louis, 187 Mo. 367, 86 S.W. 129; Security Sav. Bank v. Kellems, 274 S.W. 112; Freund Motor Co. v. Alma Realty Co., 235 Mo.App. 587, 142 S.W.2d 793; Robards v. Cities Service Oil Co., 107 S.W.2d 859; Pittsburgh Steel Co. v. Hollingshead, 202 Ill.App. 177. (7) The court did not err in excluding evidence offered by defendant from the office of the Director of Public Works. Evidence tending to show that certain acts were performed by the Assistant Director of Public Works constituted no defense. Appellant could not take advantage of its own wrong. Perry v. Strawbridge, 209 Mo. 621, 108 S.W. 641; Hellman v. National Council, 198 Mo.App. 308, 200 S.W. 698; Continental Bank v. Lantry Contracting Co., 184 Ill.App. 296. (8) Invalidity on such ground is not demonstrated. Compare Adams v. Lindell, 5 Mo.App. 197. (9) No invalidity on the face of the record. Bridgeport Hydraulic Co. v. City of Bridgeport, 103 Conn. 249, 130 A. 164; Steckard v. City of East Saginaw, 22 Mich. 104; Todd v. Securities & Exchange Commission, 137 F.2d 475. (10) There was no failure of proof that the payments were made under duress. Douglas v. Kansas City, 147 Mo. 428. (11) Defendant is not relieved of liability by the fact that the contractor mandamused it to issue the tax bills. (12) Appellant is not relieved of liability by the payments which it made to the contractor. Appellant was not a mere agent of the contractor. Donahoe v. Kansas City, 136 Mo. 657, 38 S.W. 571; Compare Spencer v. City of Los Angeles, 180 Cal. 103, 179 P. 163. (13) Appellant paid with notice of invalidity. Tillman v. Bungenstock, 185 Mo.App. 66, 171 S.W. 938; Hirning v. Federal Reserve Bank, 52 F.2d 382; Ocean Grove Assn. v. Borough of Bradley Beach, 103 A. 812; 3 C.J.S. 128; United States v. Johnson, 98 F.2d 462; Cooley, Taxation (4 Ed.), sec. 1299; Spencer v. City of Los Angeles, 180 Cal. 102, 179 P. 163. (14) Appellant was a party to the wrong. 3 C.J.S. 129; Bank of Atchison County v. Byers, 139 Mo. 627, 41 S.W. 325; Patzman v. Howey, 340 Mo. 11, 100 S.W.2d 851. (15) Appellant was not entitled to assert by way of defense or set-off that the property owners are to be charged with benefits for the sewer. The court properly excluded evidence offered in an attempt to show benefits. Drainage District No. 19 v. Arcadia Timber Co, 315 Mo. 597, 286 S.W. 93; Secs. 7378-7386, R.S. 1939.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

BRADLEY

Action for money had and received. The trial court directed verdict for plaintiff for $ 31,527.98, including interest. Verdict was returned as directed and judgment entered thereon. Motion for a new trial was overruled and defendant appealed.

March 14, 1939, the J.J. Pryor Construction Company was awarded the contract for the construction of the second section of the Brookside sewer in Kansas City. Construction was completed July 14th; accepted July 19th; taxbills in the sum of $ 132,015.60 were issued to the contractor September 25th. August 14, 1939, C. A. Ruckels, property owner in the sewer district, for himself and all similarly affected, filed suit to cancel the taxbills on the ground that they were contaminated by fraud and were void. November 5, 1941, the trial court in that case held the taxbills valid and the cause was appealed to this court. July 6, 1943, this court held that the taxbills were void. The fraud alleged and shown in the Ruckels case was a conspiracy between city officials and certain alleged favored contractors to eliminate competitive bidding and to monopolize and control the letting of all contracts for city public works and improvements. See Ruckels et al. v. Pryor et al., 351 Mo. 819, 174 S.W.2d 185.

The present case is to recover back with interest what was paid on the taxbills before the decision by this court in the Ruckels case, and ...