Voss v. Des Moines & Mississippi Levee District No. 1
| Decision Date | 21 July 1916 |
| Parties | HENRY VOSS, SR., Appellant, v. DES MOINES & MISSISSIPPI LEVEE DISTRICT NO. 1, Respondent |
| Court | Missouri Court of Appeals |
July 5 1916;
Appeal from Clark Circuit Court.--Hon. N. M. Pettingill, Judge.
AFFIRMED. CERTIFIED TO SUPREME COURT.
Judgment affirmed.
William L. Berkheimer, and John M. Dawson for appellant.
(1) When the commissioners returned their report to the board of supervisors, under Sec. 8365, R. S. 1899, without making the allowance herein sued for, the plaintiff was not at fault that is to say, he was not a party to that act. Wilson v King's Lake District, 176 Mo.App. 470. (2) Plaintiff had no cause of action against the commissioners for refusing to make his allowance, nor the supervisors for not doing their duty. The board of supervisors having accepted the commissioners report without their having allowed plaintiff and his assignors the common counts sued on, plaintiff was driven to this cause of action against the defendant. Winkelman v. Des Moines and Mississippi Levee District No. 1, 171, Mo.App. 49;; Parsons v. Des Moines and Mississippi Levee District No. 1, 178 S.W. 280; Wilson v. Drainage District, 176 Mo.App. 470; Wilson v. Drainage District, 257 Mo. 266. (3) The rights of plaintiff are bottomed upon the implied promise of defendant to pay him the money contributed, which in equity and good conscience it has received for its use. Cary v. Curtis, 111 How. (U.S.) 246; 15 Am. & Eng. Ency. of Law (2 Ed.), 283; Henderson v. Koenig, 192 Mo. 709; 1 Dillon, Munc. Corp., sec. 459, p. 533; Winningham v. Faucher, 52 Mo.App. 458; 2 Ency. Pld. & Pr., 1016-1017; Argentini v. City of San Francisco, 16 Cal. 255. (4) Defendant corporation, like private corporations, may be liable upon implied contracts. The principle upon which this doctrine rests implies if a municipality obtain the money or the property of another by mistake, or without authority of law, it is its duty to make restitution or compensation, not from any contract entered into by it on the subject, but from the general obligation to do justice, which binds all persons, whether natural or artificial. 15 Am. & Eng. Ency. of Law (2 Ed.), pp. 1083-1086; Moore v. Mayor, 29 Am. Rep. 134; Henderson v. Koenig, supra; 1 Dillon on Munc. Corp., sec. 459; Leichester v. Armstrong, 56 Mo. 298; Louisiana v. Wood, 102 U.S. 299; Memphis Gas Co. v. The City of Memphis, 30 S.W. 25; State ex rel. v. Bates, 235 Mo. 284-285.
Bert L. Gridley and C. T. Llewellyn for respondent.
(1) After the acceptance and compliance with the terms of a subscription there can be no revocation, and subscribers cannot recover back such subscription. Academy v. Cowles, 17 Am. Dec. 387; Barnes v. Perine, 9 Barb. (N.Y.) 202; Hopkins v. Upshur, 70 Am. Dec. 375; Gulf, etc., R. Co. v. Nelly, 64 Tex. 344; La Fayette County Monument Corp. v. Ryland, 80 Wis. 29; Superior Consol. Land Co. v. Bickford, 93 Wis. 220; Hodges v. O'Brien, 113 Wis. 97; Price v. St. Louis Life Ins. Co., 3 Mo.App. 262; Duval v. Laclede County, 21 Mo. 396; Handlin v. Morgan County, 57 Mo. 114. (2) The law never implies a promise, where the evidence shows the parties intended none. Aull Savings Bank v. Aull, 80 Mo. 199; Bittrick v. Gilmore, 53 Mo.App. 53; Inhabitants of Schell City v. Rumsey Mfg. Co., 39 Mo. 264; Buchanan v. Sahlein, 9 Mo.App. 552. (3) One who voluntarily pays money with full knowledge of all the facts and in the absence of fraud and duress cannot recover it back. Cloffin v. McDonough, 33 Mo. 412; Union Savings Assn. v. Kenlor, 7 Mo.App. 249; Campbell v. Clark, 44 Mo.App. 249; Atwell v. Jenkins, 28 L. R. A. 694; Croft v. South Boston R. Co., 5 L. R. A. 641. (4) It is only when parties do not expressly agree, that the law interposes and raises a promise. Sullivan v. Railroad, 64 L. R. A. 673. (5) In the case at bar it was nobody's duty to repair the breaks in the levee, nobody's duty to subscribe, no obligation existed. The subscribing was purely voluntary. Subscribers did not perform the duty of another by subscribing, it was not the performance of an obligation at all, hence the rule or principle of quasi contract does not apply. Davis v. Town of Seymour, 13 L. R. A. 210, 59 Conn. 531; Atwell v. Jenkins, 28 L. R. A. 694; Shepherd v. Young, 69 Am. Dec. 242; Montgomery County Board of Coms. v. Ristine, 8 L. R. A. 461.
--This is a suit in assumpsit for the reasonable value of a portion of levee constructed by plaintiff and his assignors. The finding and judgment were for defendant and plaintiff prosecutes the appeal.
It appears the Egyptian Levee Company, incorporated under a special act of the Legislature of 1855, constructed and maintained a system of levees in Clark county, Missouri, to protect certain lands from the overflow of the Des Moines, Fox, and Mississippi rivers. About 11,500 acres of land were included in the district, and the levees were maintained for many years, but finally the corporation became dormant. In other words, the corporate officers a number of years ago refused to qualify and act after election, and the Egyptian Levee Company remained thereafter an inactive corporation. The company owned the rights of way for its levee, and a number of ditches, and also a number of levees. Finally, a considerable portion of the levee was washed away, and at that time the corporation was without officers or anybody to represent it. Plaintiff and a number of others owning land within the levee district went voluntarily about the repair of the broken levee, in order to protect their crops.
It appears they called upon the landowners to contribute their proportionate part, and this they did. The parties had a meeting, which about sixty landowners in the district attended, and it was agreed each should pay his portion toward rebuilding the levee, which had been theretofore washed away, and present their claims to a new levee corporation to be subsequently formed in respect to the same territory. Plaintiff and his assignors contributed the several amounts sued for here and rebuilt the levee of the old, defunct Egyptian Levee Company. To this end, they purchased a parcel of right of way and constructed a portion of the levee on this, in filling in a considerable gap, but connected the new levee with the old. Also a portion was constructed on the land of plaintiff Voss, but all was built into and connected up with the levees of the old company. About a year thereafter, defendant, Des Moines & Mississippi Levee District No. 1, was incorporated under the general statutes of Missouri--that is, article VII, chapter 122, Revised Statutes 1899 ().
Section 8365, Revised Statutes 1899, same section 5707, Revised Statutes 1909, under which defendant was organized, provides, among other things, as follows:
"If the commissioners shall find that any levees or other works have been constructed, which can be used in making the levees and improvements herein contemplated, they shall assess the value of the same and report the same to the board of supervisors, and said supervisors may order said levee or such works be used so far as they extend, for the purposes of the levee district in which they are situated, and that the owners of such levee, or other improvements, or other persons having an interest in the same by virtue of having contributed money, material or labor in the construction of the same, be paid, in proportion to their interest, a reasonable compensation therefor, which shall in no event exceed the assessed value thereof."
Although the matter of the several contributions herein sued for was brought to the attention of the board of commissioners appointed to assess the benefits in connection with the organization of defendant, this board declined to allow plaintiff and his assignors, as if they were either the owner or interested parties, compensation for the expenditure by them in acquiring other right of way and in improving the old levee of the Egyptian Levee Company. The board of commissioners nevertheless adopted the levee of the old company, together with the portions repaired by plaintiff and his assignors, and the whole was utilized by defendant--that is, the new corporation--in protecting the district.
Plaintiff sues defendant, the new corporation, in the view that it should respond to him and his assignors for the reasonable value of the benefits conferred in furnishing the additional right of way and in reconstructing the levee of the old company, and relies in part upon the principle reflected in Winkleman v. Des Moines & Mississippi Levee Dist. No. 1, 171 Mo.App. 49, 153 S.W. 539; also Wilson v. King's Lake Drainage & Levee Dist., 176 Mo.App. 470, 158 S.W. 931; s. c. 257 Mo. 266, 165 S.W. 734. But those cases are distinguishable from this, in that there a valid claim existed against the old or prior company, contracted by the prior company, in the one case the then existing corporation--that is, the Egyptian Levee Company--which claim had been reduced to judgment, and in the other, against the prior existing de facto corporation for services performed under a contract with the officers of such corporation, whereas here, the money was contributed by plaintiff and his assignors in voluntarily furnishing right of way and rebuilding the levee of the defunct Egyptian Levee Company without any contract whatever with that company or its officers, for, indeed, it had no officers at the time and existed only as a lifeless corporate being.
By instructions requested, which the court refused, it appears plaintiff insists that the statute above copied (section 8365, R. S. 1899, same statute section 5707, R. S....
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