Clemens v. Mayor and City Council of Baltimore

• Decision Date: 28 June 1860
• Citation: 16 Md. 208
• Parties: AUGUSTUS D. CLEMENS v. MAYOR and CITY COUNCIL OF BALTIMORE, use of VOLKMAR & WILD.
• Court: Maryland Court of Appeals

16 Md. 208

AUGUSTUS D. CLEMENS v. MAYOR and CITY COUNCIL OF BALTIMORE, use of VOLKMAR & WILD.

Court of Appeals of Maryland.

June 28, 1860

The defendant made certain objections to a book, offered in evidence, which objection the court below overruled. This book does not appear in the bill of exceptions. HELD:

That this court cannot decide upon the propriety of the refusal of the court below to sustain these objections; the presumption is, the ruling of the court below was correct, and unless there be error disclosed on the record, its action will be affirmed.

Proof that the bills for paving were served on the defendant, corresponding in amount with the inquisition formerly taken in the case, (which the record shows was $491,) and that the defendant promised to pay the amount of the bills less about $25, is sufficiently definite to enable the jury to find the sum for which the defendant was bound.

A claim for paving taxes may be recovered in an action of assumpsit; the declaration containing an insimul computassent count, which there is evidence to support the suit is well brought.

Presentation of the bill for paving to the defendant, his acquiescence therein, and his promise to pay it, constitute an admission by him, that the necessary preliminary steps had been taken by the city, and that the paving had been done, and would authorize the jury to find a verdict for the plaintiff.

APPEAL from the Court of Common Pleas.

Assumpsit, brought on the 11th of January 1856, by the appellee against the appellant, to recover a paving tax for the paving of Fulton street. There was a judgment for the plaintiff, by default, and an inquisition taken, by which $491 were assessed as damages, but this judgment was subsequently stricken out by consent, and non assumpsit pleaded.

1 st Exception. The evidence offered on both sides, as appears from the record, is fully stated in the opinion of this court. The evidence of the record, from the office of the Commissioners of Streets, having been taken subject to exception, the defendant presented the two objections which are also stated in the opinion of this court, and then asked the following instructions to the jury:

1st. That there is no evidence of any specific sum due the plaintiff in this case, and, therefore, the plaintiff cannot recover.

2nd. If the jury find that the claim sought to be recovered is a claim for paving done for the City of Baltimore, on Fulton street, then the plaintiff cannot recover under the pleadings in this case.

3rd. If the jury find that the claim, in this case, is for paving of Fulton street, by and for the City of Baltimore, in order to recover, it is necessary for the plaintiff to offer in evidence proof, that the paving was done by virtue of an ordinance of the City of Baltimore, and must also show that the defendant owned property on Fulton street, and that the amount sought to be recovered was assessed against said property.

4th. If the jury find that the claim, sought to be recovered in this case, is for paving of Fulton street, and that such paving was done, and that the defendant owned property along the line of Fulton street, where the same was so paved, then in order to recover the plaintiff must show, in evidence, to the jury, that an assent, in writing, by a majority of the proprietors of the ground, binding on Fulton street, was given prior to such paving being done.

5th. That there is no sufficient evidence in the cause, that Fulton street was paved by the plaintiff, or that the defendant owned any property binding thereon.

The court (MARSHALL, J.) rejected all these prayers, and to this ruling the defendant excepted.

2 nd Exception. This exception contains a prayer offered by the defendant, that the book offered in evidence by the clerk of the city commissioners, does not furnish evidence to the jury, that the facts therein stated are true, so as to bind this defendant, but the court refused the prayer, overruled the objections and admitted the testimony, and the defendant excepted. The verdict was in favor of the plaintiff for $500, and from the judgment thereon the defendant appealed.

The cause was argued before ECCLESTON, TUCK and BARTOL, J.

Benj. C. Barroll, for the appellant, argued:

1st. That the book of the Commissioners of Streets was not competent evidence to prove that the proprietors of a majority of feet of ground on Fulton street made application to pave the same.

2nd. That the approval of the Mayor, as required by the 4th section of the Ordinance, No. 15, cannot be proved by the book of the Commissioners of Streets.

3rd. That there was no evidence of any specific sum due by the defendant.

4th. The declaration should have set out a claim for paving, averring a compliance with the ordinances, ownership of property on Fulton street, by the defendant, and an assessment against his property for such paving, for the amount sought to be recovered. 1 G. & J., 480, Mayor & C. C. of Balto. vs. Hughes.

5th. To entitle the plaintiff to recover it ought to show an ordinance authorizing the paving of Fulton street; that the defendant owned property on that street, and that the amount sought to be recovered was assessed against such property.

6th. There was no evidence in the case that Fulton street had been paved, or that the defendant owned property thereon.

7th. The claim was for paving Fulton street, and if the defendant was under no legal obligation to pay, his promise was nudum pactum. There is no evidence to whom such promise was made, and its character is exceedingly indefinite, for it is said he promised to pay " the amount of the claim in the case." What amount that was is left without proof.

No argument was made for the appellee.

OPINION

BARTOL, J.

This action was instituted by the appellees against the appellant. The declaration contains the common money counts, a count for work and labor, and an insimul computassent count. The defendant pleaded the general issue.

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