Soulard v. Peck

• Decision Date: 31 March 1872
• Citation: 49 Mo. 477
• Parties: HENRY G. SOULARD, Respondent, v. JOHN W. PECK, Appellant.
• Court: Missouri Supreme Court

49 Mo. 477

HENRY G. SOULARD, Respondent,

v.JOHN W. PECK, Appellant.

Supreme Court of Missouri.

March Term, 1872.

Appeal from St. Louis Circuit Court.

H. A. Clover, for appellant.

Bakewell & Farish, for respondent.

WAGNER, Judge, delivered the opinion of the court.

Plaintiff leased to defendant and his partner certain premises in the city of St. Louis, and by the terms of the lease it was mutually covenanted that the lessor should pay, within the time they might be made payable by the proper authorities, all taxes and assessments of every description, general or special, assessed, rated or imposed by city, county or State, against the premises during the term, and that the lessees should pay to the lessor, in addition to the rent reserved in the lease, all such taxes or assessments upon demand and presentment by the lessor of the receipt by the proper collector. During the continuance of the lease a sewer was constructed by the city authorities, which was supposed to be a special charge on the premises, and while it was being built the plaintiff observed it and requested the defendant to pay the assessment. Defendant said he was pressed for money, and he would pay the amount to plaintiff in the spring, and it was then agreed that plaintiff should pay the money and wait until spring for the repayment, and charge defendant no interest. The bill was presented for payment to the defendant, who occupied the premises, and he wrote upon it the following order: “Mr. H. G. Soulard will please pay this bill, sewer tax, $716.20, no interest, as you and me agreed. J. W. Peck.” When spring came, plaintiff called on defendant for payment, and he asked for further indulgence, and finally, in July thereafter, repudiated and refused to pay the debt.

The assessment was illegal, as subsequently decided by this court in another case. But at the time the order was given and the money paid, the parties were not aware of that fact. This suit was brought to recover the amount paid by the plaintiff, and upon the trial in the Circuit Court at special term, at the instance of the defendant, the court declared that upon the case made plaintiff could not recover, and refused an instruction offered by the plaintiff, to the effect that if it was found from the evidence that defendant in writing directed plaintiff to pay the special tax-bill on the agreement between plaintiff and defendant, defendant should not be held to pay the same till spring, and should not be chargeable for interest on the advancement, and that thereupon plaintiff paid the bill, a verdict...