Pacific Coal & Lumber Co. v. Pierce County

• Citation: 233 P. 953,133 Wash. 278
• Decision Date: 04 March 1925
• Docket Number: 18666.
• Court: United States State Supreme Court of Washington
• Parties: PACIFIC COAL & LUMBER CO. v. PIERCE COUNTY.

233 P. 953

133 Wash. 278

PACIFIC COAL & LUMBER CO. v. PIERCE COUNTY.

No. 18666.

Supreme Court of Washington

March 4, 1925

Department 2.

Appeal from Superior Court, Pierce County.

Action by the Pacific Coal & Lumber Company against Pierce County. Judgment for plaintiff, and defendant appeals. Affirmed.

J. W Selden, Frank D. Nash, and D. D. Schneider, all of Tacoma for appellant.

H. S Griggs and L. R. Bonneville, both of Tacoma, and L. B. da Ponte, of Seattle, for respondent.

FULLERTON J.

The respondent, Pacific Coal & Lumber Company, recovered in this action against the appellant, county of Pierce, for an excess payment of taxes. The taxes were levied for the year 1920 and were paid in the year 1921. The action to recover was commenced more than two years, but less than three years, after the payment, and the sole question presented by the appeal is whether it was commenced within the time limited by law.

The statute, for the purpose of fixing periods of limitation for the commencement of actions, as is well understood, divides actions into different classes, based on the purpose of the action and the nature of the relief sought, and prescribes a limitation on the time for the commencement of actions falling within each several class. The statute, possibly because of the thought on the part of its framers that there might be actions which could not be relegated to any one of the enumerated classes, concluded with the general provision, namely: (Rem. Comp. Stat. § 165) 'An action for relief not hereinbefore provided for shall be commenced within two years after the cause of action shall have accrued.'

It is the contention of the appellant county that the cause of action now before us did not fall within any of the specifically enumerated classes, and hence is controlled by the general clause above quoted. The trial court, however, held that it fell within the 3-year classification of the statute (Rem. Comp. Stat. § 159), particularly the third subdivision thereof, which reads:

'3. An action upon a contract or liability, express or implied, which is not in writing, and does not arise out of any written instrument.'

This court has in a number of instances held that an action will lie to recover an excess payment of taxes paid under circumstances similar to those here shown. Wyckoff v. King County, 18 Wash. 256, 51 P. 379; Tozer v. Skagit County, 34 Wash. 147, 75 P. 638; Owings v. Olympia, 88 Wash. 289, 152 P. 1019; Stimson Timber Co. v. Mason County, 97 Wash. 205, 166 P. 251; Pittock & L. Lum. Co. v. Skamania County, 98 Wash. 145, 167 P. 108.

So we have held, in cases involving other instances where money had been paid by mistake, or exacted without authority of law, that an action would lie for its recovery. Soderberg v. King County, 15 Wash. 194, 45 P. 785, 33 L. R. A. 670, 55 Am. St. Rep. 878; Fidelity National Bank v. Henley, 24 Wash. 1, 63 P. 1119; State ex rel. Grant Smith & Co. v. Seattle, 74 Wash. 438, 133 P. 1005; Smith v. Gruber Lumber Co., 81 Wash. 111, 142 P. 493; Seattle v. Walker, 87 Wash. 609, 152 P. 330.

In none of the cases first cited, the cases involving a recovery of excess payment of taxes, was the statute of limitations discussed, nor did the court in any of them state the principle of law on which the right of recovery rested. Both of these propositions, however, were raised and determined in the other class of cases cited. In Soderberg v. King County, supra, the sheriff on foreclosure sales had exacted illegal fees and paid the same after collection to the county treasurer. The action was to recover from the county the illegal fees so paid. The action was in form an action of assumpsit to recover as for money had and received. The county did not contend that it had any valid or legal right to the money, but contended that the action would not lie, as the county did not receive the money from the claimant, and hence there was no contract or privity between him and the county. The court, however, held that under such circumstances the law implies a promise of restitution for the benefit of the rightful owner, and that an action for money had and received lies against any one who has money in his hands which he is not entitled to hold as against another, and that want of privity between the parties is no obstacle to its recovery.

In Fidelity National Bank v. Henley, supra, a like conclusion was announced. The court, in stating the principle upon which the right of recovery was founded, quoted the following from Allen v. Stenger, 74 Ill. 119;

'Assumpsit always lies to recover money due on simple contract. And this kind of equitable action to recover back money which ought not in justice to be kept is very beneficial, and, therefore, much encouraged. It lies only for money which, ex equo et bono, the defendant ought to refund. When, therefore, according to this rule, one person obtains the money of another, which it is inequitable or unjust for him to retain, the person entitled to it may maintain an action for money had and received for its

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