Howard v. First Independent Church of Baltimore

• Decision Date: 27 June 1862
• Parties: ROBERT HOWARD, v. THE FIRST INDEPENDENT CHURCH OF BALTIMORE.
• Court: Maryland Court of Appeals

18 Md. 451

ROBERT HOWARD, v. THE FIRST INDEPENDENT CHURCH OF BALTIMORE.

Court of Appeals of Maryland.

June 27, 1862

The system of grading and paving streets, established by the ordinances of the city of Baltimore, is authorized by law and no constitutional objection exists to the power conferred on the owners of a majority of front feet, of imposing a tax for such purposes on the property of the other owners against their will.

But the intention of the law is, that the application by the majority-owners shall be made in good faith, and any arrangement or combination among parties applying, whereby a few, who wish the work to be done, procure the signatures of others, by paying them therefor, either directly or indirectly, is a fraud upon the law, and contrary to public policy.

By contract the defendant, in consideration that the plaintiff would " sign the petition now in circulation " for the paving of a street, agreed to pay the plaintiff any excess over $1.15 per front foot on his property, which such paving may cost, " whenever the plaintiff shall be called on by the proper party" to pay the same; HELD:

That no obligation can arise under this contract, unless the grading and paving was actually done in consequence of the application therein spoken of: and it appearing that the paving was done under and in consequence of another application two years after, not signed by the plaintiff, he is not entitled to recover.

APPEAL from the Court of Common Pleas.

Action brought May 1857, by the appellee against the appellant, to recover $300.29, upon the following contract, the execution of which by the defendant was admitted.

" In consideration that the trustees of the First Independent Church of Baltimore, in the City of Baltimore, who own a burial ground on Belle Air Avenue, will sign the petition now in circulation, to the city commissioner, to pave said avenue, I hereby bind myself to pay to said trustees any excess over one dollar and fifteen cents per front foot, which said paving may cost, whenever the said trustees shall be called on for the payment of said paving by the proper party. Given under my hand and seal this 12th day of August 1850.

ROB. HOWARD, (Seal.)"

Issue was joined on the plea of never indebted as alleged, and it was agreed that all errors in pleading should be waived, and all questions be raised which could be presented if specially pleaded. Several exceptions were taken by the defendant to the rulings of the court, (MARSHALL, J.,) admitting testimony, which need not be stated. It was admitted that the plaintiff, by its register, signed the petition referred to in the above contract, but the proof shows, or tends to show, that this application, though laid before the city commissioner and filed in his office, was never acted on by that officer, nor was the paving done under it, but under another and distinct application for grading and paving made in 1853, by owners of a majority of front feet, which the plaintiff did not sign. The plaintiff after due demand by the proper authorities in 1855, paid a paving tax on its property fronting on this avenue for grading and paving the same, amounting to $571.69, making $300.29, over and above $1.15 per front foot. The plaintiff offered two prayers, the first of which asserts its right to recover this excess if the jury find that the plaintiff, in consequence of the agreement contained in the contract, signed the petition therein referred to, that this petition was subsequently filed in the office of the city commissioner, that the avenue was subsequently paved, that the plaintiff was called on by the Mayor and City Council to pay and paid the tax bill therefor, offered in evidence, and provided they also find that the petition so signed by the plaintiff, was on file in the office of the commissioner at the time when he decided upon the paving of this avenue. The second asserts the plaintiff's right to recover upon the facts stated in the first prayer, if found by the jury, though they may find that the tax for paving which the plaintiff paid, included the cost of grading as well as paving the avenue.

The defendant asked the court to instruct the jury, that if they find from the evidence, that the paving was done under an application for paving and grading, subsequent to the one referred to in the contract sued on, then the plaintiff is not entitled to recover, unless the jury shall further find from the evidence, that the application signed by the plaintiff was used for the purpose of procuring the paving to be done, and was actually so used under the application of 1853, offered in evidence.

The court granted the plaintiff's prayers, and rejected that of the defendant, who excepted to this ruling, and the verdict and judgment being against him, appealed.

The cause was...