St. Johns Electric Co. v. City of St. Augustine

• Decision Date: 22 April 1921
• Parties: ST. JOHNS ELECTRIC CO. v. CITY OF ST. AUGUSTINE.
• Court: Florida Supreme Court

88 So. 387

81 Fla. 588

ST. JOHNS ELECTRIC CO. v. CITY OF ST. AUGUSTINE.

Florida Supreme Court

April 22, 1921

Error to Circuit Court, St. Johns County; George Couper Gibbs Judge.

Action by the St. Johns Electric Company against the City of St Augustine. Judgment for defendant on a directed verdict, and plaintiff brings error.

Reversed.

Syllabus by the Court

SYLLABUS

Count applicable in all cases where defendant has obtained money which he ought to refund. A common count for money payable to the plaintiff, for money had and received by the defendant for the use of the plaintiff, is applicable in all cases where the defendant has obtained money which, ex aequo et bono, he ought to refund.

Taxes involuntarily paid under invalid ordinance recoverable under common counts. License taxes, involuntarily paid under an invalid ordinance of a municipality, may be recovered in an action where the appropriate common counts are used.

COUNSEL

George W. Bassett, Jr., and David R. Dunham, bogh of St. Augustine, for plaintiff in error.

E. Noble Calhoun, of St. Augustine, for defendant in error.

OPINION

WHITFIELD J.

The declaration herein is as follows:

'The St. Johns Electric Company, a corporation under the laws of Florida, by its counsel undersigned, sues the city of St. Augustine, a municipal corporation under the laws of Florida, defendant, for this, to wit:

'That heretofore, to wit, on the 30th day of September, A. D. 1919, the said defendant was indebted to the said plaintiff in the sum of $2,500, for money before that time lent by the plaintiff to the defendant, and for a like sum of money before that time paid by the plaintiff for the use of the defendant, and in a like sum of money before that time had and received by the defendant to the use of said plaintiff, and for lawful interest upon and for the forbearance by the plaintiff to the defendant, at its request, of said sum of money due from the defendant to the plaintiff, and afterwards, in consideration of the premises, the said defendant promised to pay the said several sums of money on request, but did not pay the same, or any part thereof, although often requested so to do.

'Wherefore this plaintiff brings its suit and claims $2,500 damages of the defendant.

'G. W. Bassett, Jr.,

'D. R. Dunham,

'Attorneys for Plaintiff.'

Bill of particulars attached:

'Bill of Particulars. License tax imposed on St Johns Electric Company by the city of St. Augustine for year 1917 and paid by said company October 16, 1916......................... $ 500 00 License tax imposed on St. Johns Electric Company by the city of St. Augustine for year 1918 and paid by said company November 20, 1917........................ 500 00 License tax imposed on St. Johns Electric Company by the city of St. Augustine for year 1919 and paid by said company October 16, 1918......................... 500 00 --------- $1,500 00 License tax which should have been imposed by the city of St. Augustine on the St. Johns Electric Company for the following years, to wit: Year of 1917.........................$20 00 Year of 1918..........................20 00 Year of 1919..........................20 00 60 00 ------ --------- Overcharge actually made by city of St. Augustine against the St. Johns Electric Company, and actually collected by said city from said company for years of 1917, 1918, and 1919........................... $1,440 00

The pleas were 'Never was indebted as alleged' and the statute of limitations. A verdict for the defendant was directed, and a judgment entered thereon, Plaintiff took writ of error.

Revovery was sought upon the theory that illegal license taxes were collected from the...