Matthews v. City of Alexandria

• Decision Date: 31 October 1878
• Citation: 68 Mo. 115
• Parties: MATTHEWS v. THE CITY OF ALEXANDRIA, Plaintiff in Error.
• Court: Missouri Supreme Court

68 Mo. 115

MATTHEWS

v.THE CITY OF ALEXANDRIA, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1878.

Error to Schuyler Circuit Cout.--HON. JOHN W. HENRY, Judge.

J. G. Blair for plaintiff in error.

James Hagerman for defendant in error.

HOUGH, J.

This was a suit upon one hundred and ten bonds of the city of Alexandria, twenty of which are dated October 8th, 1859; thirty are dated December 3d, 1859, and sixty are dated July 7th 1860, each for $100, payable ten years after date, with ten per cent. interest, to A. Maxwell, or his assigns. The petition alleges the written assignment thereof by Maxwell to William Matthews, the plaintiff, on the 26th day of August, 1872. The bonds are not payable out of any particular fund, but are the absolute obligations of the city to pay the sums specified. The city, in its answer, admitted the validity, due execution and delivery of the bonds, and stated that they were executed by the city for a debt due Maxwell for the construction of the public wharf of the city. The answer further averred that the city, under its charter, had the power to erect, repair and regulate public wharves and docks, and fix the rates of wharfage thereat, and issue the bonds of the city thereon, and to appropriate and apply the wharfage and dockage arising therefrom in payment of such bonds. The answer, also, sets out a certain contract made on the 5th day of November, 1867, between said Maxwell and the city, in words and figures, as follows:

“This agreement, made and entered into by and between the city of Alexandria, Clark county, Missouri, of the first part, and Andrew Maxwell, of the second part, witnesseth, that, whereas, the said city of Alexandria is indebted to the said Andrew Maxwell in the sum of $11,000, besides accrued interest, being an indebtedness created by the construction of the wharf, or levee, along the Mississippi River, in front of said city, and which indebtedness is evidenced by certain bonds, each for the sum of $100, issued by the mayor and register of said city, all dated July 7th, 1860, December 3d, 1859, and October 8th, 1859, payable unto the said A. Maxwell, or assigns, and each due ten years after date, as by the interest coupons thereunto attached; Now, for value received, and for the purpose of paying and discharging said indebtedness, it is hereby agreed by and between said parties, as follows: The said city hereby leases to said Maxwell the said wharf in front of said city, for a period of twenty years from this date, and the said city also authorizes the said Maxwell to collect for his own use and benefit from all vessels and persons, except the ferry, all charges by way of wharfage or otherwise accruing during the said period of twenty years, and also all wharfage due and unpaid up to date of this contract; and the said city of Alexandria also agrees to protect and defend the said Maxwell in the use and enjoyment of the rents and profits and income of said wharf, or levee, by way of wharfage or otherwise, except the ferry, during the whole of said period; and also to pay any cost and expense which he, the said Maxwell, may be put to in the way of defending or protecting his right thereto by way of litigation or otherwise; and the said city will not hold itself responsible for any costs that may accrue in the collection of debts by the said A. Maxwell that were made previous to the date of this contract, or any costs or expenses that may be made by reason of negligence, on his part, during the term of this agreement; and the said city guarantees to the said Maxwell the right to collect reasonable wharfage from all boats, crafts, vessels, &c., except the Warsaw and Alexandria ferry, landing at the said city of Alexandria, whether they shall land in front of said paved or completed levee or elsewhere.

In consideration whereof, the said Andrew Maxwell agrees that the receipts by him of said...