Perkinson v. Schnake

• Decision Date: 15 November 1904
• Citation: 83 S.W. 301,108 Mo. App. 255
• Parties: PERKINSON v. SCHNAKE et al.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

83 S.W. 301

108 Mo. App. 255

PERKINSON v. SCHNAKE et al.^*

St. Louis Court of Appeals. Missouri.

November 15, 1904.

MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS — LIABILITY OF PROPERTY OWNER — RECONSTRUCTION WORK — REPAIRS — NONPAYMENT OF TAX BILLS — PENALTY — DEMAND — WAIVER.

1. In a suit to charge land with tax bills defendants could not contend that the work was repair work, chargeable to the city, instead of work of reconstruction, chargeable to the abutting owner, on the ground that the contractors had repaired holes and cuts in the concrete foundation beneath the surface of the pavement which was being reconstructed, where such repairs were paid for by the city.

2. In a suit to charge land with the payment of tax bills it could not be assumed, in the absence of evidence, that an item contained in the bills for "removing old pavement and preparing roadway" included the making or repairing of a concrete foundation for the pavement, which was paid for by the city.

3. The work of lining up and repairing a curb by replacing rotten stones with new ones where necessary is repair work, which must be paid for by the city, under St. Louis city charter.

4. Where a property owner informed the holder of tax bills that he would not pay the same except at the end of a lawsuit, he thereby waived any formal demand of payment, and was chargeable with the penalty for nonpayment, notwithstanding the absence of such demand.

5. Where a city charter provided for interest at 15 per cent. per annum as a penalty for failure to pay tax bills within 30 days after demand, and the exact date of the demand was not fixed, but merely the month in which it was made, or rather waived, demand should be considered as having been made on the last day of the month testified to.

Appeal from St. Louis Circuit Court; Horatio D. Wood, Judge.

Action by James E. Perkinson against Elise Schnake and others. From a judgment for plaintiff, defendants appeal. Reversed.

T. H. Culver and C. A. Schnake, for appellants. Kinealy & Kinealy, for respondent.

BLAND, P. J.

The suit is to charge lots Nos. 17 and 18, city block No. 1,008, city of St. Louis, with the payment of two special tax bills for $76.79 each, alleged to have accrued for work done and materials furnished in reconstructing a portion of Easton avenue, on which the lots abut, under authority of City Ordinance No. 19,754, and City Contract No. 6,050. On the trial it was stipulated as follows: "It is agreed between the parties that the signatures on the tax bills of Isaac H. Sturgeon and Hiram Phillips are the signatures of those gentlemen, and that the tax bills may be offered in evidence, and may be considered with the same force and effect against all of the defendants as against the defendant Elise Schnake, and that the defendants are the only parties interested in the property described in the petition." The tax bills, Ordinance No. 19,754, and Contract No. 6,050 were read in evidence, and plaintiff offered evidence tending to prove that he made demand of payment of the tax bills on October 15, 1901, by presenting the bills for payment to Schnake's wife at his place of residence. Schnake was the owner of the property. Schnake testified that plaintiff called on him about the tax bills in January, 1902, and that he then told plaintiff he would not pay the bills unless he had to at the end of a lawsuit. He said plaintiff made no formal demand of payment on that occasion. He also offered evidence tending to show that the demand made and left at his house by plaintiff on October 15, 1901, was left with defendant's daughter, not with his wife; that the latter was not present, and was not seen by plaintiff on that occasion. The issues were submitted to the court, who found for plaintiff, and gave judgment for the full amount of the tax bills, with penal interest, provided for by the city's charter. Defendants appealed.

1. The contention arises not over the quality of the work done or the materials furnished, but as to whether certain portions of the work charged for in the tax bills and provided for in the ordinance and contract was work of reconstruction, and properly chargeable to the abutting owner, or was repair work, chargeable to the city, under the provisions of the charter. The street, as the evidence shows, is an old one, and had been originally constructed of macadam, and subsequently reconstructed by putting in a concrete foundation with a wooden block surface laid on two inches of sand spread over the concrete. The wooden blocks became rotten, and the...