Dickey v. Porter

• Decision Date: 30 March 1907
• Citation: 101 S.W. 586,203 Mo. 1
• Parties: DICKEY v. PORTER et al., Appellants
• Court: Missouri Supreme Court

101 S.W. 586

203 Mo. 1

DICKEY v. PORTER et al., Appellants

Supreme Court of Missouri

March 30, 1907

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Elijah Robinson, Rozzelle, Vineyard & Thacher and R. H. Field for appellants.

(1) On the facts, the right of foreclosure of the taxbill by suit was in the Pennsylvania Bank and not in Dickey, when this suit was begun, and for this reason the judgment must be reversed. Meyers v. Water Co., 10 Cal. 579; Wetmore v. San Francisco, 44 Id. 294; Fulton v Swift, 84 Ind. 490; Reynolds v. Railroad, 143 Id. 619; Silleck v. Compress Co., 72 Miss 1019; Griswold v. American Ins. Co., 1 Mo.App. 100; and see these and other authorities cited and quoted in the argument of this point, post. (2) The special taxbill sued on is void and the finding and judgment should have been for defendants, as asked in the declaration of law asked by defendants, because this bill was not made out and certified by the president of the board of public works, nor in his name by any person or persons by the board of public works thereunto specially authorized. Kansas City Charter, art. 9 sec. 15; Stifel v. Southern Cooperage Co., 38 Mo.App. 340; Young v. Carendon Township, 132 U.S. 349; see, also, other authorities cited and quoted, post, in argument of this point. (3) The city charter (sec. 10, art. 9) required the cost of district sewers to be computed and apportioned by the board of public works; also, that the board of public works "apportion and charge the same as a special tax against the lots of land in the district, exclusive of the improvements, and in the proportion that their respective areas bear to the area of the whole district, exclusive of the streets," etc. The special taxbill sued on is therefore void, because neither it nor any proceeding of the board of public works recites: (1) The area of the lands in the sewer district; (2) the area of the land described in this taxbill; (3) that the land described in the taxbill was charged according to its area of the lands in the district, the principle or basis of the city charter provision; or, (4) that the sum charged in this special taxbill was apportioned and charged thereon, by the board of public works. Carroll v. Eaton, 2 Mo.App. 479; City of Linneus v. Locke, 25 Mo.App. 407. And these objections are not removed by the later recital in the taxbills: "And the sum mentioned has been duly assessed and proportioned against the lands, as provided by law." This statement in the taxbill is a mere conclusion of the official who issued the taxbill, and counts for naught as evidence that the board of public works itself made the assessment or made it according to the area of lands in the sewer district. Kansas City v. Railroad, 81 Mo. 296; Railroad v. Young, 96 Mo. 42; Yankee v. Thompson, 51 Mo. 238; and see other authorities in argument of this point, post. Nor can it be presumed that the board of public works apportioned and charged the cost of the work, nor that it did so, on the basis or principle authorized by the city charter, when no such action is recited in the special taxbill or other proceeding of the board of public works. The absence of such recital by the board of public works rather raises the presumption that the board of public works did not thus apportion the cost of the work nor at all. Smith v. Omaha, 49 Neb. 883; Cooly on Taxation (2 Ed.) 480-1; Kelly v. City of Chicago, 193 Ill. 324; Hall v. Kellogg, 16 Mich. 135; Pearsall v. Supervisors, 71 Mich. 438; Kansas City v. Railroad, 81 Mo. 296; Long v. Burnett, 13 Iowa 29. Especially is there no presumption of unrecited official action as to a municipal board, like the board of public works, which is required to make and keep a record of all of its acts. Fruin-Bambrick Con. Co. v. Geist, 37 Mo.App. 515; sec. 15, art. 9, of Kansas City charter. (4) A recovery on the taxbill sued on was unauthorized because: the contract of Dickey with Ford, under which the work was done and the taxbills were procured by Dickey, was in effect a transfer of the contract of the city with Ford, or a subletting of the work embraced within it, by Ford to Dickey in violation of the city contract prohibiting any transfer of the contract or any subletting of the work. Hardy Co. v. Iron Works, 129 Mo. 222; Lansden v. McCarthy, 45 Mo. 106; Boykin v. Campbell, 9 Mo.App. 496; Deffendaugh v. Foster, 40 Ind. 384; Burke v. Taylor, 152 U.S. 634; Boston Ice Co. v. Potter, 123 Mass. 28; Smelting Co. v. Mining Co., 127 U.S. 379; Delaware Co. v. Safe, 133 U.S. 473; Light Co. v. Hampstead, 38 A.D. 353; Fortunato v. Patton, 147 N.Y. 282; 2 Am. and Eng. Ency. Law (2 Ed.), 1035. (5) If, as testified by plaintiff, and his witness, the Ford-Dickey contract was neither a transfer of the contract with the city nor a subletting of the work embraced therein, then it must be a mere mortgage or pledge of the taxbills by Ford to secure Dickey for the loans and materials he contracted to furnish him for the construction of the sewers, and as such mortgage or pledge is made void by our statute because of the usurious provisions of this contract, plaintiff should not recover on any view. R. S. 1899, sec. 3710; Keim v. Vette, 167 Mo. 403; Western Storage Co. v. Glassner, 169 Mo. 38; 29 Am. and Eng. Ency. Law (2 Ed.), 487-8; Morse v. Wilson, 4 T. R. 353; Weaver v. Burnett, 110 Iowa 567; Cobb v. Day, 106 Mo. 208. (6) The taxbill sued on is void because the dimensions, material and character of the sewers were not prescribed by ordinance. Kansas City Charter, sec. 10, art. 9; Dickey v. Holmes, 109 Mo.App. 721; Ludenberg v. Chicago, 183 Ill. 572; Coggeshall v. Des Moines, 78 Ia. 235; Rich Hill v. Donovan, 82 Mo.App. 386. (7) The court erred in ordering and adjudging that the amount of the judgment herein bear ten per cent per annum. R. S. 1899, sec. 3707; St. Louis v. Allen, 53 Mo. 57; Plum v. City, 101 Mo. 525.

Clarence S. Palmer and Karnes, New & Krauthoff for respondent.

(1) With respect to the first point made by appellants, the record discloses the following: (a) The taxbill sued on was issued November 30, 1896. (b) The action was instituted May 28, 1901. (c) The taxbill bore interest at the rate of ten per cent per annum from date of issue. Charter of Kansas City, p. 163, sec. 23. The taxbill was payable in installments; and if the installments had been promptly paid the rate of interest would have been seven per cent. Default was made, however, in all of the installments, and hence under the provisions of the charter cited the taxbill bore ten per cent interest. (d) Accordingly, at the bringing of the action, the amount due on the taxbill was the face of the taxbill, $ 9,787.95, together with interest from November 30, 1896, to May 28, 1901, at ten per cent per annum, or $ 4,404.57, a total of $ 14,192.52. (e) The note executed by Dickey and which is the basis of defendants' contention, was dated February 11, 1901; was due six months after date, August 11-14, 1901, and bore no interest until maturity. (f) Dickey was personally liable for the payment of this note, and in any event, on the payment of the note was entitled to a return of the taxbill. In no phase of the case was the bank in Pennsylvania entitled to more than the face of the note, that is, $ 12,500; and the difference between $ 12,500 and $ 14,192.52, the amount due on the taxbill, together with accrued interest at the beginning of the suit, was clearly the property of Dickey. (g) The note executed by Dickey was paid when due. The contention of appellants is predicated of Revised Statutes 1899, section 540: "Every action shall be prosecuted in the name of the real party in interest." This section of the statute must be read in connection with Revised Statutes 1899, section 542: "All persons having an interest in the subject of the action, and obtaining the relief demanded, may be joined as plaintiffs, except as otherwise provided in this article." Fisher v. Patton, 134 Mo. 54. Assuming, for the purpose of argument, that Dickey had pledged the taxbill as collateral security for a loan, the record shows that the note for which the taxbill may have been pledged was not due when this action was instituted, and that no default ever occurred in the payment of the note. The pledgor remains the owner of the pledged property, and in the event that the pledgee disposes of the same in an invalid manner, the pledgor may have an action for conversion. Greer v. Bank, 128 Mo. 559; Bank v. Richardson, 156 Mo. 270; Richardson v. Ashby, 132 Mo. 238; Hagan v. Bank, 182 Mo. 319. "In the case of a pledge, the title does not pass to the pledgee, but remains in the pledgor." Conrad v. Fisher, 37 Mo.App. 403; Van Idour v. Nelson, 60 Mo.App. 523. The right of plaintiff to maintain the action is illustrated by the case of Matthews v. Railroad, 142 Mo. 658. Dickey and the bank, having joined as parties plaintiff, and it appearing on the trial that the interest of the bank had then ceased, the name of the bank would have been stricken out as a party plaintiff. R. S. 1899, sec. 657; Ins. Co. v. Railroad, 74 Mo.App. 74; Hoagland v. Vanetten, 35 N.W. 869, 22 Neb. 681; Bank v. Hayes, 112 Cal. 75. (2) (a) In Missouri, it is well settled that a blank endorsement of paper not negotiable is a mere authority to the holder to fill it up; until this is done, the legal title remains in the payee. Taylor v. Larkin, 12 Mo. 105; Wiggins v. Rector's Executor, 1 Mo. 478; Menard v. Wilkinson, 2 Mo. 92. (b) If it be claimed that the endorsement on the back of the taxbill operated as a mortgage of the taxbill, the same defect obtains. The very essence of a mortgage is an assignment of a chose in action for the payment of a debt, and unless there is a valid assignment, completely executed, there can be no valid...