Pleadwell v. Missouri Glass Co.

• Decision Date: 07 November 1911
• Citation: 160 Mo. App. 585,140 S.W. 935
• Parties: PLEADWELL et al. v. MISSOURI GLASS CO.
• Court: Missouri Court of Appeals

140 S.W. 935

160 Mo. A. 585

PLEADWELL et al. v. MISSOURI GLASS CO.

St. Louis Court of Appeals. Missouri.

November 7, 1911.

Rehearing Denied November 25, 1911.

1. APPEAL AND ERROR (§ 171) — THEORY BELOW — CHANGE ON APPEAL.

Where an action by a lessor against the lessee to recover an amount assessed upon a tax bill, on the ground that the lessee was bound to pay the tax, was tried below and in another Court of Appeals, to which the case was originally appealed, on the theory that notice by publication was given as required by ordinance, that a benefit district was fixed, and that the property was included therein, defendant cannot first claim on appeal that the tax bill was void because such proceedings were not taken.

2. LANDLORD AND TENANT (§ 148) — COVENANT TO PAY TAXES — BREACH — PLEADING — EVIDENCE.

In an action by devisees of a lessor against the lessee to recover a special assessment against the property, on the ground that the lessee was bound to pay the tax, allegations of the petition as to the institution of the proceedings for the assessment of the special tax, and that by reason thereof the property was subject to a special tax, were sufficient to admit evidence of all the steps taken in the special tax proceeding, including notice by publication, the fixing of a benefit district, and inclusion of the property therein.

3. EVIDENCE (§ 457) — PAROL EVIDENCE — EXPLAINING LEGAL TERMS — "SPECIAL TAX."

In an action by a lessor against the lessee to recover a special assessment against the property, on the ground that the lease required lessee to pay all taxes, whether general or special, evidence was not admissible tending to show that the term "special tax" was generally understood by parties to leases in the city to cover an assessment for benefits in widening the street; the term having a well-defined legal meaning which could not be explained by parol evidence.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Action by Theodosia Wallace Pleadwell and others against the Missouri Glass Company. From a judgment for defendant, plaintiffs appeal. Reversed by the Springfield Court of Appeals (151 Mo. App. 51, 131 S. W. 941), and transferred to the St. Louis Court of Appeals. Reversed and remanded, with directions to enter judgment for plaintiffs.

J. L. Hornsby, for appellants. Warwick Hough, for respondent.

REYNOLDS, P. J.

This is an action by the devisees of the then owner and lessor of certain premises in the city of St. Louis, against the lessee, to recover of the lessee the amount paid out by them on a certain tax bill alleged to have been levied and assessed against those premises, which it is alleged that plaintiffs had paid but which they claim the lessee was obligated to pay under a covenant of the lease, that the lessee, its successors, etc., "agrees to pay all taxes, whether general or special, levied or assessed against said property, or the improvements thereon during said term." The cause was originally appealed to this court from a judgment of the circuit court of the city of St. Louis against plaintiffs, appellants here. It was transferred to the Springfield Court of Appeals in accordance with the provisions of an Act of the General Assembly of this state, approved June 12, 1909, now section 3939, R. S. 1909; was there argued and submitted and the judgment of the circuit court reversed and the cause remanded. The Supreme Court subsequently declared the act of the Legislature above referred to unconstitutional and held that the Springfield Court of Appeals had no jurisdiction in causes so transferred, even when those causes had been submitted to that court by the respective parties. See State ex rel. Dunham v. Nixon, 232 Mo. 98, 133 S. W. 336; State ex rel. St. Louis Dressed Beef & Provision Co. v. Nixon, 232 Mo. 496, 134 S. W. 538; State ex rel. O'Malley v. Nixon, 233 Mo. 345, 138 S. W. 342. This case was accordingly sent back to this court by the Springfield Court of Appeals and is now submitted to us on briefs and oral arguments by counsel for the respective parties.

In his oral argument before us the learned counsel for respondent very frankly admitted that all points covered by the opinion of the Springfield Court of Appeals were out of the case and that unless the point which he proposed to present to us was tenable, there was nothing remaining in the case for controversy or discussion. That counsel thereupon presented the case to us on these propositions: First, that the amended petition and the evidence of plaintiff's were fatally defective, in that publication of the notice which the ordinance of the city requires the city counselor to give in such proceedings, was neither averred in the petition nor proven by any evidence in the case. Second, that it nowhere appears in the record what the benefit district was which was fixed by the commissioners or that the premises here involved were within that district. Claiming that these omissions are fatal to plaintiffs' case, inasmuch as it then stood as one of a voluntary payment by plaintiffs of a special tax bill which was not valid and which was no lien against the property, it is now contended that plaintiffs must fail in their effort to saddle their mistake upon defendant. Necessarily, therefore, counsel challenges the statement made by Judge Cox in his opinion, to the effect that "notice was given by publication, as provided by the city ordinances, and was sufficient," counsel claiming that this statement is not justified by the averments of the petition or by the evidence. That counsel further, and for the same reason, challenges the statement of Judge Cox, to the effect that a benefit district was established, "which district included the property covered by the lease aforesaid." Beyond these, no objection is made to the statement of facts made by Judge Cox.

In the light of this very frank concession of counsel, it is unnecessary for us to enter into a detailed statement of the facts in the case, and it is sufficient to refer to the opinion of Judge Cox, as reported in 151 Mo. App. 51, 131 S. W. 941.

We will therefore confine ourselves to an examination of the above points, as now made by counsel for respondent in his brief and oral argument.

We might dispose of the contention now made by the learned counsel for respondent who argued the case before us, by saying that it not only comes too late but that it is entirely contrary to the theory upon which the case was tried in the circuit court. It is not necessary to cite cases in support of the rule that parties, in actions at law, are bound by the theory they assumed in the trial court. Nor can a party lie by and, trying a case apparently on one theory, spring a vital point, and endeavor to introduce an entirely new line of defense, for the first time in the appellate court, even though such theory was not properly presented by the pleadings. Nicket v. St. Louis, M. & S. R. Co., 135 Mo. App. 661, 116 S. W. 477; Mitchell v. United Rys. Co., 125 Mo. App. 1, 102 S. W. 661.

But as counsel has challenged the statements of fact above quoted from the opinion of Judge Cox, we think it not improper to go into the matter a little more fully.

We have read the whole transcript of the record in this case, as well as the printed briefs and arguments of counsel for the respective parties, together with the motion filed by counsel for appellants for a modification of the judgment, the memorandum of counsel for respondent in opposition to that, the reply of counsel for appellants to that memorandum, the motion for rehearing filed by counsel for respondent, and the memorandum of counsel for appellants in answer to that motion. These were all originally filed with the Springfield Court of Appeals. In the trial of the case in the circuit court, respondent was represented by P. B. Flitcraft and Jacob Klein, Esquires, both former judges of the circuit court of the city of St. Louis and both since deceased.

As will be observed by the summary which Judge Cox makes of the pleadings in the case, while it is true that there is no specific averment that the city counselor had issued the notice required by the city ordinance, or that the commissioners had designated the district to be assessed, or that this particular parcel was within that district, it is averred substantially that the charter and ordinances had been complied with in assessing the benefits and issuing the tax bill. In point of fact the petition distinctly avers the institution of the proceedings, their result and that by virtue of the proceedings the premises involved became subject to the special tax and that it became and was a charge and claim against those premises. This was sufficient to let in evidence of all the steps taken in the course of the proceeding. As was said...