Bambrick v. Campbell

37 Mo. App. 460 | Mo. Ct. App. | 1889

Rombauer, P. J.,

delivered the opinion of the court.

The plaintiff prosecutes this action on a special tax bill. The petition contains • the usual averments and states, among other things, that the work was done by the St. Louis Quarry Company, to whom the tax bill was originally issued, and who, for value, assigned the same in writing to the plaintiff. There was j udgment for plaintiff in the trial court, and the defendants appeal.

I. The first assignment of error is that the court erred in admitting any evidence in support of the petition, because the tax bill was not assignable, and therefore the plaintiff, as assignee, could not maintain the action in his own name. In City v. Rudolph, 36 Mo. 465, and City v. Rice, 89 Mo. 685, the supreme court decided that a tax bill issued to a contractor was an assignable cause of action, and these decisions preclude all argument on the subject, as far as this court is concerned. The first of these cases was decided in 1865, and established a rule of property which has been followed ever since, so that even if this court had power to disturb it, which it clearly has not, it would be both unwise and inequitable to do so.

II. The' next complaint is that the assignment of the special tax bill was not proved. The tax bill offered in evidence contains the following indorsement:

“ I hereby assign the within bill, for value received, to John Bambrick, and he .is authorized to sign my name to the receipt.

“ St. Louis Quaeey Company,

“M. L. Bates, Pres.”

The plaintiff proved that M. L. Bates was president of the St. Lonis Quarry Company, and that the signature to the endorsement was in his handwriting. The objection was that no authority was shown in Mr. Bates, as president of the St. Louis Quarry Company, to assign the tax bill. Both parties assumed in the examination that the quarry company was a corporation. Presidents of corporations, by general custom, exercise certain powers in acting for the corporation. This custom has frequently been judicially recognized. 1 Morawetz -on Private Corporations, sec. 538. The president, being the legal head of the body, when an act is performed by him, the presumption will be indulged in that the act is legally done and binding upon the body. Southgate v. Railroad, 61 Mo. 94; Smith v. Smith, 62 Ill. 493. The ■evidence in this case was sufficient to make out aprima faeie case of a valid assignment in the absence of proof that the officer in question, under the charter and laws ■of the corporation, had no such authority.

III. It appeared by the defendants’ evidence that .the board of public improvements drafted an ordinance providing for the street improvement in question, and .sent it to the municipal assembly, as the charter requires. ' The municipal assembly suggested an amendment, and submitted it to the board, who thereupon ■embodied the amendment into the ordinance, and recommended its passage. The ordinance as thus amended was passed. The amendment related to a change in the material and depth of the curb. There was an endorsement .on the ordinance, as first prepared, showing the ■estimated cost of the improvement, and the apportionment of such"cost. This endorsement was retained on the amended ordinance. These facts were shown by the journal of the house, and by the records o.f the board of public improvements.

The defendant claims that the facts thus shown were fatal to plaintiff’s recovery; that the board became functus officio when it sent the first draft prepared by it to the assembly, and could not re-acquire jurisdiction of the matter, except by preparing and submitting an entirely new ordinance, with a new estimate and apportionment of the cost; and that the amendment of a pending ordinance was wholly unauthorized.

The object of the charter provision is to secure to the public, and to the property-owners affected by the improvement, the benefit of the skill and unbiased judgment of scientific men, removed from local influence. The provision is that no ordinances for the construction or reconstruction of a street shall be passed, unless recommended by the board of public improvements. That the ordinance in question was passed in the exact shape, in which it was recommended by that board, is not questioned; and it -is certainly wholly immaterial whether, in so doing, the board made a clean copy or used its former copy and interlined it. By retaining the original estimate, the board simply declared that the change did not substantially affect the cost; whether the estimate was correct or not, is not a question for the courts. The trial court admitted all this evidence, as it tried the case sitting without a jury, and therefore we are not called upon to decide whether, under the rule stated in Ball v. Fagg, 67 Mo. 484, the minutes of the municipal assembly, or of the board of public improvements, were admissible at all for the purpose of showing that an ordinance, valid upon its face, was not legally passed, or whether the rule stated in Ball v. Fagg was. set aside by the supreme court in State ex rel v. Mead 71 Mo. 266. This assignment of error is without merit.

The next assignment is that the ordinance providing for the improvement was void, because it did not contain a provision of advertising for bids under it. The charter provides that the board of public improvements shall in all cases, except in case of necessary repairs, requiring prompt attention, prepare, and submit to the-assembly, estimates of cost of any proposed work, and under the direction of the ordinance shall advertise for bids, as provided for purchases by the commissioner of supplies. The charter also provides that the municipal assembly shall provide by ordinance for the purchase of all articles by the commissioner of supplies, by advertising for proposals, and then goes on to state in detail the manner of advertising, opening bids, and awarding of contracts. It is the object of the charter to make advertisements and bids for public work conform to this provision, and the ordinance referred to in in the first charter provision, above quoted, by the words “under the direction of the ordinance” is an ordinance providing for advertising which conforms in details to the charter requirement in advertising for bids for supplies.' The object of the provision is to secure to the public the same particularity and exactness in advertisements for all public work, as the charter requires in advertisements for supplies. No claim is made that the board did not advertise for this work with the same detail of description, as required by the charter provision and ordinance providing for advertising for supplies. The only claim is that this advertisement was provided for by another ordinance, and not the ordinance providing for the improvement. There is no merit in this assignment.

IV. The only remaining assignment is that the court erred in treating the date of filing the plaintiff’s petition, and the issue of a summons thereon, as the date of the institution of the suit, and hence as the date of the demand, which fixes the plaintiff’s right to penal interest. The charter provides that, in case the owner of the ground is a. non-resident of the state, suit may be brought by attachment, which shall be a demand of its payment. In the case at bar, suit was brought by summons, and the defendants who are non-residents were subsequently brought in by publication. This court decided in the case of Eyermann v. Provenchere, 15 Mo. App. 271, that the charter does not imply that a demand prior to the institution of the suit is to be a condition precedent to recovery, and that there was nothing to take this class of cases out of the general rule, that the bringing of a suit is of itself a demand. If the filing of a petition and the issuance of a summons thereon fixes the date of the institution of the suit, and hence the date of demand against a resident of the state, even though he was not served with process upon that summons, but upon an alias subsequently issued, it is not perceptible, why it should not fix it against a non-resident. No question was made in the case as to the valid institution of the suit by summons, as the defendants appeared and defended on the merits.

Seeing no error in the record, we affirm the judgment

All the judges concurring,

it is so ordered.