W. C. HAWKINS ET AL., Appellants, v. FRED C. COX ET AL.
Supreme Court of Missouri, Division One
December 22, 1933
66 S. W. (2d) 539
The petition alleges that the conspiracy was carried out by defendants and caused plaintiff to be discharged by the Marx & Haas Clothing Company. It likewise alleges that the conspiracy caused all of the things about which the petition complains, but it does not allege that defendants did any unlawful act looking to the carrying out of the conspiracy. As heretofore stated, the gist of an action in the nature of a conspiracy is not the unlawful agreement but the damage done to plaintiff by unlawful acts committed by the defendants. It is, therefore, indispensable that the petition charge the defendants with the commissiоn of unlawful acts which resulted in damage to plaintiff. It is true the petition alleges that the conspiracy was carried out by defendants, and that the conspiracy caused the things about which the plaintiff complains, but it does not charge defendants with the commission of any unlawful act in furtherance of the conspiracy. The allegation that defendants carried out the conspiracy, and that the conspiracy caused the things about which complaint is made, do not charge defendants with the commission of any unlawful act, but are mеre conclusions of the pleader, and for that reason the petition does not state a cause of action.
It follows that the action of the court in sustaining the demurrer to the petition and rendering judgment for defendants should be affirmed. It is so ordered. All concur.
It appears that the Jamesville Speciаl Road District was duly formed and incorporated under
It is a little difficult to ascertain the exact terms of the purchase contract. No formal written contract seems to have been made and if any memorandum of the purchase was entered in the minutes of the proceedings of the road district, same was not produced at the trial, and if any order for the machinery was given to or received by the Weber Company, that was not produced. There is no document or writing whatever relating to the transaction put in evidence as shown by the record. Not even the warrants issued in payment of this machinery were put in evidence. The parties tried the case without objection on oral evidence only, although the statute,
At the beginning of the trial, which was had in March, 1929, the parties agreed upon and stipulated these facts: “1. That the assessed vаluation of all property in the Jamesville Special Road District in Stone County, Missouri, available as a basis for the levy of taxes, at the time of the making of the contract alleged by plaintiffs was $120,000. 2. That defendants as Commissioners of said Jamesville Special Road District in Stone County, Missouri, made a contract for the purchase of road building machinery as alleged in plaintiffs’ petition to the amount of $2500.” The allegations of the petition are that on the —— day of ——, 1928, the named road commissioners “entered into a contract and agreement with the de-
The evidence was heard in March, 1929, and the clearest version of the terms of the contract to purchase this road machinery is given by one of the commissioners, Fred O. Cox, who testified: “I was one of the commissioners of this road district at the time this contract was made. We purchased a five-ton, Cletrac caterpillar tractor. We paid $500 down on it and freight amounting to $93, the best I remember. Then we gave two warrants, I don‘t remember what amount, covering the balance of the payments. The contract price was $2500. The two warrants were given after we made the initial payment.
“Q. Do you know when they were due and payable, these two warrants? A. Well, there is this contract between us; we are to pay $500 and the interest yearly until it is paid out, the payments being the first day of April, this year. That is on the $2000 balance. The rate of taxes last year was fifty cents on the $100 valuation.
“Q. You say you have a contract with this implement company that you were to pay $500 a year? A. Five Hundred Dollars and interest yearly, until the sum of $2000 and interest is paid. Now understand that is not in accordance with the warrants. We gave warrants for two payments in order that they would become commercial paper, could be handled through the clearing house, but our contract is $500 a year.
“I don‘t know the rate of taxation this year (1929). I don‘t know whether the Cоunty Court had stipulated their part or not. Ours is twenty cents (twenty-five cents); if they put on fifteen it will be thirty-five; if they put on twenty it will be forty. There is no other indebtedness against the district, that is all we owe, what we owe the Weber Implement and Auto Company.
“(Cross-examination) Q. Mr. Cox, have you a record of the contract entered into for the purchase of this machinery? A. No, I don‘t think we have any record of that at all, that is, between us and the company. It is not reduced to writing. There is no written contract,
“Q. You just made a contract verbally with the agent of the company? A. We had bought quite a little machinery before this from this same company and we just always made our contracts and gave the warrants.
“Q. You issued how many warrants and what denominations? A. I couldn‘t tell the denominations, but there were three warrants issued to cover the entire $2500.
“Q. Did you have a written contract that $500 was to be paid each year? A. No, sir, we didn‘t have any written contract to that effect; but we had done this same kind of business with the same company several years prior to this; we had always paid that way.
“Q. Were these warrants drawn on the revenue of any particular year; and state in the warrant when they were to be paid? A. Well, I think they were drawn to fall due on the first day of April; I don‘t know whether they specified the year, I kind of believe they did; I don‘t remember the year.
“Q. You mean $500 to be due the first of April each year? A. Whatever the amount was; it was over $500; it was $500 and interest. We were to pay $500 and the freight in 1928, leaving a balance due of $2000.
“Q. That would take four years then more after the year 1928 to finish paying it out? A. That is our verbal contract with the company, at six per cent interest. I think this was in February, 1928. The commissioners had levied thirty cents (twenty-five cents), I believe, and the county twenty, making fifty. At the time we purchased the machinery in February our road tax was fifty cents on the $100 valuation.
“Q. And you didn‘t undertake to make any kind of assessment or levy for the full amount of this indebtedness you had contracted at that time? A. No, sir, our road tax has been somewhеre in the neighborhood of $600 a year.
“Q. You just made the usual levy and contracted an indebtedness to be paid yearly for the next four years? A. That is right. We figured that the 25-cent levy would take care of the payments and interest. We figured we would pay $500 and interest and have a small balance left except the poll tax. We didn‘t figure to make a levy to wipe out the entire indebtedness in that year.
“(Redirect examination) Q. You say that the revenue or the amount raised from that fifty-cent levy or that you could expect from all sources in thаt district would be how much? A. Well, it run in the neighborhood of $600. This did not include poll taxes. Includ-
V. Z. Cox, another commissioner, testified: “I was one of the commissioners of this road district at the time this contract was made and am commissioner now. The district received the machinery purchased from the Weber Implement and Auto Company and the district is now using it, used it last week and this week four days. We also used it last year. When the board met and bought this machinery they figured on our revenue, by running a twenty or twenty-five cent levy, the revenue would take care of the warrants drawn to pay for this in payments by the skin of our teeth; if it didn‘t do it there was an agreement they would take care of the balance. We would pay what we could and they would take care of the balance. That was the agreement with the agent of the company. I don‘t know whether we issued three warrants or not, I know we paid $500 down and paid the freight. I think there is $2000 outstanding yet. We could expect a twenty-five cent levy to bring in аround $700.”
We gather from this evidence that this road district had usually levied and did levy in 1928, the year this machinery was purchased, a general levy of twenty-five cents on the $100 valuation on the property of the district, and that the county made a like general levy which would be apportioned to the road district, thus giving to the road district the proceeds of a fifty-cent levy each year. This yielded a revenue of about $600 per year on the assessed valuation of the property in the road district. This was the revenue provided for the year 1928, in which thе contract to purchase this road machinery was made.
This road district is given authority under
The question presented here is whether the road district in question exceeded its powers in this respect, under its then financial condition, in making the contract of purchase just referrеd to, and if so, to what extent. We think the first question must be answered in the affirmative. Municipal corporations, such as are special road districts, are by our Constitution placed on what has been termed a cash basis. This has been accomplished by the provisions of
This provision of the Constitution is self-enforcing and limits the power of this road district “to become indebted in any manner and for any purpose” beyond the revenues provided for the year. Under the facts here, “the income and revenue provided for the year” 1928, in which the contract was attempted to be made, was whatever would be derived from the levy of fifty cents then made on the $100 valuation of the property in the district, amounting to approximately $600. The contract of purchase being made in February, 1928, the commissioners had a right to cоntract with reference to the funds then on hand as a cash payment and the anticipated tax collections of that year on the rates levied, as such was “the income and revenue provided for that year,” but no further. The road district had no power by contract of purchase made in February, 1928, to anticipate, appropriate or tie up the revenues of the district for 1929 or after years not yet levied and the amount of which would depend on levies to be made, if at all, in such years. In Trask v. Livingston County, 210 Mo. 582, 109 S. W. 656, the county in September, 1889, contracted to have a bridge built to be paid for in a fixed amount when completed. It was not accepted by the county till in May, 1890, when warrants were issued for its payment out of the revenues for 1890. The court said: “When the county became indebted on these bridge contracts
The contract for the purchase of and payment for this road machinery made in February, 1928, is void at least to the extent it attempted to obligate the district for payments beyond the cash payment made at the time and the amount to be paid out of the revenues provided for 1928. [Anderson v. Ripley County, 181 Mo. 46, 65, 80 S. W. 263.]
Defendant argues that a special road district like this one is not limited in the rate of taxation by the provisions of
It is also urged by plaintiffs that the contract for the purchasing of this road machinery is void for the reason that it is not in writing, as required by
It is pointed out, however, that plaintiffs have not alleged as a ground for injunction that the contract in question is void because not in writing, and therefore the case was not tried on that theory. This is true, and while the evidence now before us clearly shows that there was no written contract entered into, yet were this the only ground of its invalidity, the case would be remanded for new trial in order that the question of there being a sufficient writing to evidence the contract might be fully developed by the evidence, but as the contract is void as violative of the constitutional inhibition against becoming indebted to an amount exceeding the income and revenue provided for the year in which the contract was made, it would be useless to do so.
While we must declare the contract for the purchase of this road machinery and the unpaid warrants issued in payment of same to be void, the road district will be met with the proposition that, the purchase contract being void, the title to the road machinery remains in the seller, the Weber Company, and has not vested in the district. [Sparks v. Jasper County, 213 Mo. 218, 112 S. W. 265; Roeder v. Robertson, 202 Mo. 522, 100 S. W. 1086; Hillside Securities Co., 300 Mo. at 391.] It is not for us to say how the road district will work out this problem, but it will be on the basis that the district is not hampered by the contract of purchase, nor does it own the property attempted to be purchased. The court should not grant all the relief prayed for by plaintiffs. It cannot restrain the district from levying taxes or receiving and using the taxes levied by the county court on the property within the district. Such taxes are levied and collected not for any pаrticular purpose, but for the general purpose of constructing, improving and keeping in repair the roads, bridges and culverts within the road district, and such district has the right to use this revenue to rent, lease, or buy teams, implements, tools and machinery, motor power and all things necessary to carry on such work, subject to the constitutional and statutory restrictions in so doing. The board of
Thе case is, therefore, reversed and remanded with directions to enter a decree declaring void and non-enforceable the contract in question for the purchase of the machinery in question and the warrants issued in payment of the same, and enjoining the defendants from paying any such warrants and from carrying out or enforcing such contract. Ferguson and Hyde, CC., concur.
PER CURIAM:—The foregoing opinion by STURGIS, C., is adopted as the opinion of the court. All the judges concur.
Court en Banc, December 22, 1933.