Everett v. Marston
| Decision Date | 21 February 1905 |
| Parties | EVERETT v. MARSTON et ux., Appellants |
| Court | Missouri Supreme Court |
Appeal from Jackson Circuit Court. -- Hon. James H. Slover, Judge.
Reversed (with directions).
Flower Peters & Bowersock for appellants.
(1) A taxbill for street improvements issued under the charter of Kansas City is not a lien until receipted for to the board of public works. Art. 9, sec. 18, charter of Kansas City; Cooley on Taxation (2 Ed.), 444; Jaicks v. Sullivan, 128 Mo. 177; Inhabitants of Houstonia v. Grubbs, 80 Mo.App. 433; Smith v. Barrett, 41 Mo.App. 460. (2) Nor is it an incumbrance or charge of any kind before it becomes a lien. Cooley on Taxation (2 Ed.), 447; McQuiddy v. Gates, 69 Mo.App. 156; Seibert v. Copp, 62 Mo. 182; Cadmus v. Fagan, 4 A. 323; Dowdney v Mayor, 54 N.Y. 186; Harper v. Dowdney, 113 N.Y 644; Tull v. Royston, 30 Kan. 617; Langsdale v. Nicklaus, 33 Ind. 289; Jones v. Schulmeyer, 39 Ind. 119; Lindsey v. Eastwood, 40 N.W. 455. (3) Where a special provision is made in a contract to cover the taxes, it must prevail over a general provision as to liens and incumbrances. Miller v. Wagenhauser, 18 Mo.App. 11. (4) Until it becomes a lien, compensation for street improvements is not a "paving tax." Sheehan v. Hospital, 50 Mo. 155, and cases cited under points 1 and 2. (5) An admission by an attorney during the trial of a cause is conclusive on his client. Nichols v. Jones, 32 Mo.App. 657; Moling v. Barnard, 65 Mo.App. 600; Wilson v. Spring, 64 Ill. 14; Central Branch v. Shoup, 28 Kan. 394.
Willard P. Hall for respondent.
(1) As to the alleged alteration of the written contract in suit: 1. The answer was silent as to any alteration of said contract. No alteration was apparent upon the face of the contract, and it was, therefore, necessary for defendants both to allege and to prove any alteration. Shelton v. Reynolds, 111 N.C. 525; Matorsy v. Foote, 9 Tex. 610; Land & Lumber Co. v. Tie Co., 87 Mo.App. 167; State ex rel. v. Chick, 146 Mo. 645. 2. There was no alteration. The alleged alteration, consisting of the added words in writing, "Seller agrees to pay all paving taxes in full" (a) was made before either Fidelity Trust Company or plaintiff had signed the contract; (b) and said addition was made by Fidelity Trust Company's agents, and therefore, defendants' subagents, Crutcher & Welsh, with authority. 3. The existence of said words in the contract was known both to the real owner of the property, the Farmers' Loan & Trust Company, and to the Fidelity Trust Company, its agent, as early as August 24, 1901. Neither of them made any objection on that account, they retained their copy of the contract, and to this day they have kept the $ 100 paid by plaintiff as part of the purchase-money. Thereby, if such words were inserted in the contract by Crutcher & Welsh without authority in the first instance, said owner and its agent ratified such insertion by Crutcher & Welsh. Yocum v. Smith, 63 Ill. 321; Rennville Co. v. Gray, 61 Minn. 242; Pulliam v. Withers, 8 Dana (Ky.) 98; Stewart v. Bank, 40 Mich. 348; Cameron v. Grigsby, 116 Ill. 151; Emerson v. Opp, 9 Ind.App. 581; Glover v. Green, 96 Ga. 126; Henry v. Heeb, 114 Ind. 275; Reed v. Morton, 24 Neb. 760; Bank v. Umrath, 42 Mo.App. 525. 4. As to the alleged admission by plaintiff's counsel that the added words were inserted after the Fidelity Trust Company had signed the contract: (a) The alleged admission was in the form of a remark made by plaintiff's counsel, and did not have the force nor effect of an admission of the fact stated. 1 Thomp. on Trials, sec. 201; Ferson v. Wilcox, 19 Minn. 388; McKeen v. Gammon, 33 Mo. 187. (b) The remark of plaintiff's counsel was made in relation to an objection made by opposing counsel to the introduction of the contract in evidence on the alleged ground of alteration; plaintiff's counsel explained that they would show that the alteration was made by Crutcher & Welsh, and defendants' counsel asked if the alteration was not made after the Fidelity Trust Company signed the contract, and plaintiff's counsel answered "yes." This was solely for the purposes of the objection made by defendants' counsel, and not for the purpose of dispensing with proof of the fact in question. Henry C. Brent who signed the contract for the Fidelity Trust Company had just testified that the alteration was made after he signed the contract, and counsel for defendants for the purpose of giving force to their objection to the introduction of the contract in evidence asked the question if it was not admitted that the alteration was made after the Fidelity Trust Company signed the contract, as testified by Mr. Brent, in order to show to the court that plaintiff did not propose to contradict Mr. Brent's testimony in that regard. (c) The remark of plaintiff's counsel was erroneous, and was made in ignorance of the real truth. Defendants took no action based upon said remark, and the court would certainly have permitted plaintiff's counsel to have withdrawn the remark had such permission been asked. The action of the court and of defendants in permitting plaintiff, after the remark was made, to prove the fact to be contrary to said remark, was equivalent to consent by them both to plaintiff's withdrawal of said remark. Defendants having at the trial treated the remark as not an admission of the fact stated, having treated the fact as at issue, having consented to plaintiff's introduction of evidence that the fact was not as stated in said remark, can not now in this court for the first time take the position that said remark was a binding admission. Estes v. Nell, 163 Mo. 387; Adair v. Matte, 156 Mo. 496; Fitzpatrick v. Weber, 168 Mo. 562; Fehlig v. Busch, 165 Mo. 144; Raming v. Railroad, 157 Mo. 477; Merrielees v. Railroad, 163 Mo. 470; Farrar v. Railroad, 162 Mo. 469; Davis v. Watson, 89 Mo.App. 15; Kemp v. School District, 84 Mo.App. 680; Lumber Co. v. Calhoun, 89 Mo.App. 209; State to use v. O'Neill, 151 Mo. 67; Feary v. O'Neill, 149 Mo. 467. (2) As to the construction of the contract: 1. The contract is to be construed in the light of the circumstances under which it was executed, and for the purpose of ascertaining the real intention of the parties. 17 Am. and Eng. Ency. of Law (2 Ed.), 21-22; Crawford v. Elliott, 78 Mo. 497; Belch v. Miller, 32 Mo.App. 387; Patterson v. Camden, 25 Mo. 13; Ellis v. Harrison, 104 Mo. 270. 2. The evidence was absolutely conclusive that both defendants' agent, Welsh, and plaintiff intended by the written words to protect plaintiff against payment of the cost of the improvements on Oak street, and to obligate the seller to make such payment. The words themselves, "Seller agrees to pay all paving taxes in full," do not refer to any particular paving taxes, and, therefore, it was proper by parol evidence to explain what paving taxes were meant, and to identify such taxes. There was here a latent ambiguity, which is always open to parol explanation. 2 Am. and Eng. Ency. of Law (2 Ed.), 289, 295, 296; Streeter v. Seigman, 48 A. 907; Miles v. Miles, 30 So. 2, 78 Miss. 904; Fruit Growers Assn. v. Packing Co., 134 Cal. 21; Matthews v. Robertson, 111 Wis. 324; Nurford v. Railroad, 70 Tenn. (2 Lea) 393; Longfellow v. McGregor, 56 Minn. 312; Fruit Co. v. Galeabashi, 111 F. 125; Mariner v. Rogers, 26 Ga. 220; Doughtry v. Boothe, 94 N. C. (4 Jones' Law) 87; Woodfair v. Sluden, 61 N.C. 200; Smith v. Wood, 133 Ind. 221; Ins. Co. v. Neiberger, 74 Mo. 172; Van Ravenswaay v. Ins. Co., 89 Mo.App. 77; Broughton v. Null, 50 Mo.App. 231; Wolfert v. Railroad, 44 Mo.App. 330; Emory v. Dyce, 70 Mo. 537; Ellis v. Harrison, 104 Mo. 270; Gill v. Ferrin, 52 A. 558. 3. Under the contract the seller was bound to pay all incumbrances except the taxes of 1901, and subsequent years, and taxbills issued by Westport, which had been declared invalid and afterwards had been reissued by Kansas City, and, therefore, the seller was obligated to pay the cost of all street improvements, which cost at the time of the execution of the contract was an incumbrance upon the property. 4. The improvements of Oak street having been completed prior to the execution of the contract, the cost thereof, at the time of executing the contract, was an incumbrance upon the property, even though the taxbills had not then been issued. Lafferty v. Milligan, 165 Pa. St. 534; 2 Jones on Real Property -- Conveyancing, sec. 870; Car v. Dooley, 119 Mass. 294; Blakie v. Hudson, 117 Mass. 181; Forster v. Scott, 136 N.Y. 577; Cadmus v. Fagan, 47 N. J. L. 549; Tibbetts v. Leeson, 148 Mass. 102; Peters v. Myers, 22 Wis. 574; White v. Stretch, 22 N.J.Eq. 76; Campion v. City of Elizabeth, 41 N. J. L. 355; Barnhart v. Hughes, 46 Mo.App. 318; Duffy v. Sharp, 73 Mo.App. 324.
This is a suit in equity to compel a specific performance of a written contract of date July 12, 1901, for the sale and conveyance of lots 5 and 6 of Springfield Park, an addition to Kansas City, Missouri.
While the action is against Mr. and Mrs. Marston, it is conceded by both parties that Mr. Marston was merely the trustee, holding the title for the Farmers' Loan & Trust Company of New York, which had acquired the lots by foreclosure of a loan thereon.
The contract out of which this controversy originated is as follows:
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