Mathews v. City of Kansas

• Decision Date: 31 October 1883
• Citation: 80 Mo. 231
• Parties: MATHEWS v. THE CITY OF KANSAS, Appellant.
• Court: Missouri Supreme Court

80 Mo. 231

MATHEWS

v.THE CITY OF KANSAS, Appellant.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Jackson Circuit Court.--HON. S. H. WOODSON, Judge.

REVERSED.

R. H. Field with Wash Adams for appellant.

There was mistake on the part of respondent only in paying the taxes, and none on the part of appellant in receiving them. If appellant should re-pay the taxes, it cannot be placed in statu quo as to the taxes against the lots, and the judgment should be reversed. Jiska v. Ringold Co., 57 Iowa 630; Laws of Mo. 1875, § 27, p. 226; U. S. Bank v. Bank of Ga., 10 Wheat. 333, 358; Boas v. Updegrove, 5 Barr 516; Guild v. Baldridge, 2 Swan (Tenn.) 303; Story Eq. Jur., §§ 147, 148; Cooley on Tax., 567; Taylor v. Commissioners, 3 Pen. & Watts (Pa.) 112; Espey v. Allison, 9 Watts 462. There was no mutual mistake, and it is only in such case that the legal right of restitution prevails, regardless of where the loss falls. Duncan v. Berlin, 5 Rob. (N. Y.) 468; Paulison v. Van Iderstine, 28 N. J. Eq. 306; Luddington v. Ford, 33 Mich. 123; Evarts v. Stegar, 5 Ore. 147; 71 Mo. 563. The taxes were a charge only against the lots, and it was no concern of the collector to whom they belonged.

Lathrop & Smith for respondent.

If the evidence establishes a mutual mistake of fact, respondent is entitled to recover. Koontz v. Bank, 51 Mo. 275; Harris v. Board of Education, 3 Mo. App. 570; Budd v. Eyermann, 10 Mo. App. 437; Allen v. Mayor, 4 E. D. Smith 404; Deitrich v. Mayor, 5 Hun 421; Rheel v. Hicks, 25 N. Y. 289; Kingston Bank v. Eltinge, 40 N. Y. 391; Mayer v. Mayor, 63 N. Y. 455. The fact that the taxes were a charge against the land does not affect the case. And, even if the purchaser of the lots applied to the collector and was informed there were no delinquent taxes against them, still the plaintiff would be entitled to recover. Raley v. Guinn, 76 Mo. 263, 275.

PHILIPS, C.

This action was begun in March, 1879, by respondent, Mathews, against the appellant, the City of Kansas. The petition alleged in substance that in January, 1875, the plaintiff was owing to the defendant taxes for the year 1874, assessed on certain lots of the plaintiff in said city; that his agent, Harriman, for him, went to the collector's office, in said city, in January, 1875, to pay the taxes, and by the mutual mistake of the parties the said agent payed tax on other lots not belonging to plaintiff, which sum so paid he seeks to recover back. The answer is a general denial.

The plaintiff's evidence was to the following effect: “That respondent had a map containing a list of lots in the corporate limits of appellant, in King & Bouton's addition; that on this map were certain marks or characters which indicated the lots belonging to him; that this map was left with his brother A. B. Mathews or D. O. Smart, his banker, for their guidance in ascertaining his lots for the purpose of paying the taxes thereon; that his said brother procured Harriman in January, of the year 1875, to pay the taxes due appellant on respondent's lots; that Harriman then went to Smart, the banker, for a list of respondent's lots to pay the taxes due on same; that by his or Smart's mistake, or both, the list of lots taken from said map were not those belonging to respondent; that Harriman took the list of lots so taken by mistake and gave it to appellant's collector, and told him to make out a receipt for the taxes due appellant upon said list of lots, and to make out the receipt to respondent as owner thereof; that the collector made out the receipt accurately as directed; that it contained the lots and only those on the list given him by Harriman, as aforesaid; that this mistake was not discovered until sometime in the year 1878, when the respondent found that the taxes which he intended to be and thought were paid, as aforesaid, were then still delinquent; that he has, since 1878, paid the taxes so due upon his lots, and that he demanded of appellant's common council the re-payment of the taxes so paid by Harriman under mistake, but appellant had failed and refused to re-pay them. Respondent admitted at the hearing of this cause, (as appears in the bill of exceptions,) that the taxes so paid by mistake were in the 1874 land tax-book of appellant entered paid on date of payment, and that they never had been carried forward upon any subsequent tax-book; that these lots so paid on by mistake had changed hands since said payment and before the discovery of the mistake herein, and that they have not since discovering said payment was a mistake, belonged to the same parties who owned them at the date of such payment.”

Defendant, at the close of plaintiff's evidence, demurred thereto. The court refused the instruction. Defendant then introduced as a witness the collector, who testified substantially that he did not pretend to know who was the owner of real property on which taxes were assessed; that it was not the custom in the office in receiving taxes to make inquiry who is the owner; the taxes upon real estate being against the land itself, the receipts are made out to those paying in whosever name the party paying directs. In this particular case Harriman paid this tax. Witness did not remember that Harriman told him whose property it was, although he may have done so; that he did not care to inquire or know. On cross-examination he stated that he knew that Harriman was a tax-paying agent, and that he was in the habit of giving receipts to such agents in the name of the owner when known; that Harriman must have given him the name of Mathews as the party in whose name the tax receipt was to be made out, and he so made the same in the name of Mathews as owner of the property described in the receipt.

The defendant again requested the court to instruct to the effect that under the evidence plaintiff could not recover. This the court again refused.

The plaintiff asked no instruction. The defendant requested the court to give the following declaration of law: “If the court believes from the evidence that the witness Harriman, or other person for plaintiff, intending to pay taxes due defendant upon certain lots belonging to plaintiff, but by mistake paid taxes to defendant upon other and different lots which did not belong to plaintiff instead, without the fault or mistake of defendant, then plaintiff cannot recover back the taxes so paid, or any other amount, unless the court believes from the evidence that the defendant will not suffer the loss of such taxes.” The court refused to give this instruction, and thereupon found the issues for the plaintiff and rendered judgment accordingly. From which defendant has appealed to this court.

I. It is rendered in a measure unnecessary to discuss the rights of a party to recover on a mistake committed solely by the actor, for the reason that the basis of recovery assumed in the petition is the mutual mistake of the parties. Ordinarily, when recovery is sought on the ground of complainant's mistake alone, the action is not maintainable if the defendant would not be left in statu quo, or unless he had been guilty of some fraud, misrepresentation or would secure some unconscionable advantage by withholding the money. In the instance of a mutual mistake the party paying thereunder may ordinarily recover without regard to the special equities involved as to where the loss will fall. In such case it is mainly a question of fact. The inquiry is, were both parties in error as to the real facts, and did both act thereon? The answer to this question controls the issue. Waite v. Leggett, 8 Cow. 195; Kingston Bank v. Eltinge, 40 N. Y. 396; Koontz v. Cent. Bank, 51 Mo. 275. Thus restrained by the pleadings, the question is chiefly one of fact. The facts in this record are quite clear and undisputed. Do they establish a mutual mistake or tend thereto? That the agent Harriman was under a misapprehension as to the lots on which he made the payment, is palpable enough. But I am unable to discover any mistake on the part of the collector representing the city. To rightly estimate and interpret the action of the collector in this transaction, regard should be had to the law under which he was acting. He was not acting sui juris but virtute officii. He was acting under a special statute which defined his duties, directed his acts and limited his powers. In contemplation of law, this was known to the agent, Harriman, in dealing with the collector. Under the statute then in force the assessment of taxes on real property was not a personal tax against the owner. The assessment was made on the land itself by its numbers, regardless of who was its owner. It was not the duty of the collector to look up the owner or apply to him for the taxes. The tax by law became due and payable at certain prescribed periods, and it was the duty of the owner to go to the collector, or send some one, and pay this tax assessed on the land as such. So the collector in his testimony but stated a legal truth in saying that he had no concern as to who was the owner of a given lot or tract of land. He was receiving the tax imposed on the given lot as such. It may be conceded that if Harriman had gone to the collector and stated that he had come to pay the tax assessed on plaintiff's land, trusting to the collector to look up the numbers, and this the collector undertook to do, and furnished the wrong numbers, and the agent had thereupon made payment on the belief of the correctness of the lots, this would have been a case of mutual mistake, or at least one in which the plaintiff would have a clear equity of restitution. But the proof here is that without any word or act of the collector inviting thereto, the...