Pasche v. South St. Joseph Town Company

• Decision Date: 03 November 1913
• Citation: 161 S.W. 322,174 Mo.App. 614
• Parties: CHARLES PASCHE et al., Appellants, v. SOUTH ST. JOSEPH TOWN COMPANY, et al., Respondents
• Court: Kansas Court of Appeals

161 S.W. 322

174 Mo.App. 614

CHARLES PASCHE et al., Appellants, v. SOUTH ST. JOSEPH TOWN COMPANY, et al., Respondents

Court of Appeals of Missouri, Kansas City

November 3, 1913

Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.

REVERSED AND REMANDED (with directions).

Culver & Phillips for appellants.

Broaddus & Crow for respondents.

OPINION

TRIMBLE, J.

This is a suit upon two special tax bills issued against two lots respectively in the South St. Joseph Town Company's Third Addition to South St. Joseph, for the cost of paving curbing, and guttering Lake avenue, from Illinois avenue to Alabama street. The judgment below was for defendants and plaintiffs appealed. The two lots are owned by the defendant Ruth E. Brady; and the defendants, the South St. Joseph Town Company and A. L. Thompson have some interest in them.

It is conceded that plaintiffs are entitled to recover upon both tax bills unless the one defense interposed by the defendants shall prevail. That defense is that the petition presented to the board of public works, praying for the improvement and selecting the materials therefor, was not signed by the resident owners of a majority of the front feet of the property abutting upon the improvement. The strength or weakness of that contention depends upon the sole proposition whether the signature of the South St. Joseph Town Company by E. M. Lindsay, its secretary and treasurer, was a signing by said company of said petition. If the signature of said company as owner of 1023.25 feet should be stricken off and that number of feet not be counted, because the signature was not authorized in such way as to bind the company, then said petition was not signed by the owners of a majority of the front feet of the property abutting on the improvement, and the tax bills are, in that event, void because, in such case the city had no jurisdiction or power to authorize the improvement or levy the special tax bills.

The trial court made, among others, the following finding of fact (which is the only one now material to the consideration of this appeal), to-wit:

"The court further finds that the South St Joseph Town Company has been incorporated for about twelve years, and shortly after its incorporation and before Mr. Lindsay signed the petition asking that the improvement be made, the board of directors at a meeting or meetings of the directors instructed and directed John Donovan, president, and Ernest Lindsay, secretary and treasurer of the South St. Joseph Town Company, to attend to all business of that company, the practical management of all of the company's business being placed in Mr. Lindsay's hands. The directors were nonresidents of the State of Missouri, excepting Mr. Lindsay and Mr. Donovan and Mr. Van Vliet, and for that reason they left the transaction of all business of the company to Mr. Donovan, president, and Mr. Lindsay, secretary and treasurer. After the property of the South St. Joseph Town Company was taken in the corporate limits of South St. Joseph, and before the petition referred to was signed, there came up before the board of directors a great many matters of business in which the company was interested; sewers, water mains, gas mains, street improvements, sidewalks, grading, water connections and many other things, and all of these matters were brought to the attention of the directors of the company by Mr. Donovan, and the instructions of the board of directors were that Mr. Donovan as president and Mr. Lindsay as secretary and treasurer should handle and attend to all of these things for the company, and thereafter they did attend to all of these matters. Mr. Lindsay as secretary and treasurer, usually, and Mr. Donovan, sometimes, signed the petitions asking for the improvements of all the streets abutting upon the property of the company which were improved, and the board of directors knew that Mr. Lindsay was actually transacting all the business of the company, including the business of causing the streets in the addition owned by the company to be improved. Each year the board of directors ratified everything Lindsay and Donovan had done during the preceding year. They handled all of the business of the company of every kind and description with the knowledge of the board of directors. The board of directors met once a year and elected officers. That is about all the business that the board of directors themselves transacted, the entire management and control of the property being left with Mr. Donovan and Mr. Lindsay. When the petition for the improvement of Lake avenue came up, Mr. Donovan and Mr. Lindsay agreed that Mr. Lindsay should sign the petition for the company, and Mr. Donovan directed Mr. Lindsay to sign, and he did sign it for the company."

Thereupon the trial court held that as the board of directors of the South St. Joseph Town Company had not passed any resolution especially relating to Mr. Lindsay's authority to sign petitions for street improvements, or specially authorizing him to sign this particular petition, the name of said company as owner of 1023.25 feet should not be counted, and thus the number of feet represented by the owners on the petition fell below the number required to make a majority.

The question thus presented is: Did the secretary, when he signed the town company's name to the petition, have sufficient authority to bind the company? This involves also the question when a managing officer of a corporation signs the corporation's name to a petition for a street improvement, how must his authority to do so be shown in order to bind the company? The statute authorizing the petition does not require the names of the owners to be signed in any particular way, nor that the authority to sign shall appear on the face of the petition, nor does it provide that the authority to sign shall be proved or established by any particular kind of evidence. If, therefore, the secretary has such authority to sign the petition as would bind the corporation if it were in any other matter of ordinary contract, then the company should be bound in the improvement proceeding. And, if the corporation itself is bound, certainly Ruth E. Brady, the owner of the particular lots in question, cannot complain especially since she as owner of said two lots also signed the petition for the improvement; and in said petition it is alleged that the owners constitute a majority of the front feet.

The board of public works found that the petition was signed by the owners of the necessary majority of the front feet. Of course, its finding is not conclusive, but may be inquired into. However, as the statute does not require the corporation's name to be signed by any particular officer, nor that such officer's authority to sign should appear on the face of, or be attached to, the petition, the finding of the board that the owners of a majority of the front feet had signed it, establishes, prima facie, that the town company's name had been signed so as to bind the company, and throws upon the defendants the burden of proving that the company was not so bound. In Hudson Co. v. City of Bayonne, 54 N.J.L. 293, l. c. 296, the proceeding was attacked upon the ground that a signature on the petition was not authorized, or was not the signature which it purported to be, and the court said: "The circumstance that the body to whom it was presented has acted upon it as genuine, is prima facie evidence that it is what it purports to be." In that case the signature disputed was "Elizabeth Wilkinson, per J. W. Heck, Attorney" and while the court held that such signature should not be counted, such holding was on the ground that "no authority whatever" was in Heck to sign, as the evidence showed that he had never said anything at all to her about the matter. In State ex rel. v. Nelson, 57 Wis. 147, 15 N.W. 14, it was held that as the petition stated that it contained the requisite number of qualified signers and the board acted upon the petition and disposed of it on the merits, this was sufficient to cast the burden of showing that it was not so signed upon the party who asserts it.

The defendants in this case contend that they maintained that burden of proof by showing that there was no resolution adopted or passed by the board of directors of the town company specifically authorizing Lindsay, the secretary and treasurer, to sign petitions for street improvements, or to sign this particular petition, and by showing that at the time Lindsay signed the petition the board of directors did not know that the particular street in question, Lake avenue was being sought to be improved. And the trial court held with defendants on that contention. But does the authority to sign for and thereby bind the company have to be shown in any such way? In the absence of any particular requirement by the statute, cannot the authority of this officer, Lindsay, be shown in any way that would bind the corporation as in the case of any other act done by an agent? In Sherman v. Fitch, 98 Mass. 59, l. c. 64, it is said: "Authority in the agent of a corporation may be inferred from the conduct of its officers, or from their knowledge and neglect to make objection, as well as in the case of individuals." In the case of Allen v. City of Portland, 58 P. 509, it was sought to have a special assessment for a street improvement declared void. The ground of the attack was that the petition for the improvement did not contain the names of the owners of one half of the abutting property. To maintain this charge it was necessary that the name of the Oregonian Publishing Company should be declared not properly signed thereto. The signature in question was thus: "Oregonian Publishing Co. by H. L. Pittock, Sec'y." It...