Delmar Investment Company v. Lewis

• Decision Date: 30 June 1917
• Citation: 196 S.W. 1137,271 Mo. 317
• Parties: DELMAR INVESTMENT COMPANY et al. v. EDWARD G. LEWIS et al., Appellants
• Court: Missouri Supreme Court

196 S.W. 1137

271 Mo. 317

DELMAR INVESTMENT COMPANY et al. v. EDWARD G. LEWIS et al., Appellants

Supreme Court of Missouri

June 30, 1917

Appeal from St. Louis City Circuit Court. -- Hon. Eugene McQuillin Judge.

Reversed.

Fauntleroy Cullen & Hay, Anderson, Gilbert, Hayden & Levi and John A Blevins for appellants.

(1) The bond sued on was one of indemnity, and as there was no evidence of the payment of any money by respondents or that they were damaged, they could at most recover only nominal damages. Walker v. Deaver, 79 Mo. 664; Hunt v. Marsh, 80 Mo. 396; Kellog v. Malin, 62 Mo. 433; Buren v. Hubbel, 54 Mo.App. 617; Bartlet v. Tinsly, 175 Mo. 329. (2) The court erred in holding that the tax bills in question were prima-facie evidence of the regularity of the proceedings for such special assessments and the validity of the tax bills. Sec. 9408, R. S. 1909. (3) It was not shown by the evidence that the city of University City or the board of aldermen had taken the necessary legal steps to authorize the issuance of the special tax bills and the same were therefore void. (a) The resolution of the board of aldermen was fatally defective. It did not give the board jurisdiction over the improvement of said street. (b) Said resolution was defective in that it did not set forth a description of the material and the kind of work to be done in the improvement of the street in question, and failed to contain or refer to any specifications for said work. (c) Said resolution included the cost of bringing said street to the established grade, at the expense of the property owners, without describing the work of bringing such street to the established grade, as required by Sec. 9410, R. S. 1909. Smith v. Westport, 105 Mo.App. 221; Kirksville v. Coleman, 103 Mo.App. 215. (d) Said resolution failed to describe the proposed work or to give any description of the materials to be used or any intimation of the cost. Coulter v. Construction Co., 131 Mo.App. 230; Kirksville v. Coleman, 103 Mo.App. 215. (e) The said resolution contained no specification or reference thereto, whereby the property owners might inform themselves as to said improvement and its cost. (f) There is no evidence that the board of aldermen notified the property owners by publishing said resolution, as required by Sec. 9411, R. S. 1909. (4) There was no evidence that the board of aldermen received or did not receive any protests against said improvement by the property owners. There is no finding by the board of aldermen that a majority of the property owners failed or neglected to file a protest against said improvement, as required by the statute.

Boyle & Priest, W. B. Priest and Charles T. Abeles for respondents.

(1) The bond on which this action is brought contains an express covenant to pay all taxes levied against respondents' property. It is not, therefore, merely an indemnity bond, but one upon which liability arises immediately its conditions are broken, regardless of whether or not respondents have paid the tax bills or have been damaged by reason of appellants' failure to do so. Ham v. Hill, 29 Mo. 275; Bank v. Leyser, 116 Mo. 51; Loewenthal v. McElroy, 181 Mo.App. 399; Pierce v. Plumb, 74 Ill. 326; Shattuck v. Adams, 136 Mass. 34; Trust Co. v. Surety Co., 214 Pa. St. 163. (2) The special tax bills were properly introduced in and received as evidence. (a) Sec. 9408, R. S. 1909, is operative in the case at bar. Fruin v. Meredith, 145 Mo.App. 605; Gist v. Construction Co., 224 Mo. 378. (b) The legal relationship of appellants and respondents is similar to that of principal and surety, and the respondents are entitled in this action to all the rights and remedies of the holder of the tax bills. 32 Cyc. 20; Rubey v. Watson, 22 Mo.App. 434. (c) The tax bills are required by law to be issued. They are, therefore, admissible to prove that which they purport to show, and being once admitted they are prima-facie valid. Ronkendorff v. Taylor's Lessee, 4 Peters (U.S.), 349; Paving Co. v. Ullman, 137 Mo. 568; State ex. inf. v. Heffernan, 243 Mo. 453. (3) The tax bill cannot be presumed invalid, but must be proved so by affirmative evidence. The evidence touching upon the preliminary procedure failed to reveal the defects urged by the appellants against the tax bills. (a) The statutes do not require the work other than grading to be described in the resolution, and it would be a piece of judicial legislation so to hold. Lexington ex rel. v. Bank, 130 Mo.App. 695. (b) The failure to describe the work of bringing the street to grade is, in this instance immaterial. Haag v. Ward, 186 Mo. 325. (c) The publication of the resolution is not only presumed, but was satisfactorily established.

WALKER J. Woodson, J., dissents, and Bond, J., not sitting.

OPINION

In Banc.

WALKER, J.

This is a suit on a bond made by Edward G. Lewis as principal and James F. Coyle as surety, to the plaintiffs. The conditions of same are that the makers will hold the plaintiffs, the Southern Real Estate & Financial Company and Charles J. Cella and their property on the north side of Delmar Boulevard within the limits of University City harmless against and pay as and when payable all the special taxes that may be levied by the said city of University City against the property aforesaid called the "Delmar Race Track" for the grading, construction, paving and improvement of Delmar Boulevard within the limits of said University City, including the curbs and sidewalks. The breach assigned is the failure of the obligors to pay two certain tax bills alleged to have been levied against the property in question, for the grading, construction, paving and improvement of Delmar Avenue, one of said tax bills being in the sum of $ 5260.32 and the other for $ 321.28, each bearing interest at the rate of eight per cent. per annum from September 30, 1910. The petition alleges that upon the completion of the work August 31, 1910, University City by its officers issued and delivered to the Fruin-Colnon Construction Company these tax bills; that notice of the issuance of same and demand for their payment was made upon plaintiffs by said Construction Company September 13, 1910, and that the principal due thereon, with interest as stated, was by virtue of the levying of such tax bills justly due and payable; that payment has been demanded and refused; that said tax bills became and are by their issuance and delivery valid and subsisting liens upon the property. Judgment was demanded for the penalty of the bond, $ 25,000, and that execution issue for $ 5491.60, with interest at eight per cent per annum from September 30, 1910.

The answers were general denials.

A trial before a court and jury resulted, under the direction of the court, in a verdict in favor of plaintiffs in the sum of $ 6098.01 and costs, from which defendants appealed to the St. Louis Court of Appeals, which affirmed the judgment of the trial court (180 Mo.App. 22), but certified the case here for final determination on the ground that "the Kansas City Court of Appeals had placed a different construction on sections 9410 and 9411, Revised Statutes 1909, than that of the St. Louis Court of Appeals in City of Kirksville ex rel. v. Coleman, 103 Mo.App. 215, and the Supreme Court in Gist v. Construction Co., 224 Mo. 369."

I. It is contended that the obligation herein is one of indemnity alone and that proof of damage must precede a right of recovery. The principal, Lewis, obligated himself by this undertaking to hold the plaintiffs harmless and to pay as and when required by law the special taxes levied by the said city against the property specified for improving Delmar Boulevard. This constituted a promise to pay the special taxes when due and thus discharge the obligees. An obligation of this character is not a contract of indemnity under which damages must be sustained before recovery can be had, but an affirmative covenant on which a right of action accrues on failure to pay. [Salmon Falls Bank v. Leyser, 116 Mo. 51, 22 S.W. 504; Loewenthal v. McElroy, 181 Mo.App. 399, 168 S.W. 813.]

II. It is insisted that the trial court erred in holding that the tax bills were prima-facie evidence of the regularity of the proceedings underlying their validity. This contention arises from the construction given the statute in relation to the probative force of special tax bills, which is as follows:

"Such special tax bills shall, in any action thereon, be prima-facie evidence of the regularity of the proceedings for such special assessment, of the validity of the bill, of the doing of the work and of the furnishing of the materials charged for, and of the liability of the property to the charge stated in the bill." [Sec. 9408, R. S. 1909.]

Thus construed this statute is limited in its application to suits brought by holders of such tax bills as are here under consideration, against the owners alone of the property. We are not impressed with the force of this contention. This statute is a part of the general code relative to cities of the fourth class and has particularly to do with public improvements therein. Such laws are looked upon with a kindly eye by the courts, or to put it in...