140 Mo. App. 232 | Mo. Ct. App. | 1909
Lead Opinion
(after stating the facts). — This is an action on a contract, in form a lease, with an option in the lessee, on conditions, to purchase the leased premises. It is manifest from an examination of the pleadings, evidence and judgment of the trial court that the only question we are required by this appeal to determine is whether the special taxbill for $70.81, for the construction of a district sewer, paid by the decedent, F. T. Mills, was included in the contractual obligation of the respondent “to pay all taxes from and after December 1st, 1904.”
The only means at the command of courts in cases like the present, to enable them to ascertain the intention of the parties to a contract, is to apply the well established canons of interpretation. The determination of the present case is therefor centered in small compass and all depends upon the meaning which ought to be given to the words “all taxes” which appear in the con
The rule is of long standing and elementary that in the interpretation of a contract, “its words must be taken in their common, ordinary and usual sense, and when they are free from ambiguity and uncertainty, there is no room for construction.” [Roy v. Boteler, 40 Mo. App. 213; Missouri Edison Electric Co. v. Bry, 88 Mo. App. 135; Maginn v. Lancaster, 100 Mo. App. l. c. 130.]
The words “tax” and “taxation” received an authoritative construction by our Supreme Court more than fifty years ago in the case of Egyptian Levee Co. v. Hardin, in which the court used substantially these words: “The word Tax,’ in its ordinary and received sense, means a public imposition for governmental and public purposes, and not local assessments for municipal purposes.” [Egyptian Levee Co. v. Hardin, 27 Mo. 495-497.] A clear and consistent line of cases in this State from that time to the present has recognized the distinction between a tax in its ordinary sense and a local assessment for municipal purposes. [City of Clinton v. Henry County, 115 Mo. l. c. 563; McCutcheon v. Railroad, 72 Mo. App. l. c. 275; Palmyra v. Morton, 25 Mo. 593; Keith v. Gingham, 100 Mo. 300; Independence v. Gates, 110 Mo. 374; St. Louis v. Allen, 53 Mo. l. c. 52;
But we are not left with these decisions. The principles of legal interpretation here announced haye been applied to the interpretation of the word “tax”' as used in leases and covenants in other jurisdictions. The word “taxes,” as used in a covenant of a tenant whereby he covenants “to pmj all the taxes that may be assessed and levied within his term,” these courts hold must be presumed, in the absence of qualifying words or clauses, to be used in its common and ordinary acceptation and meaning, and therefore the tenant is not liable for grading and paving and gutter assessments. [Longmore v. Tiernan (Pa.), 3 Pittsb. R. 62, 64; Beals v. Providence Rubber Co. (R. I.), 23 Am. Rep. 472; Bolling v. Stokes (Va.), 21 Am. Dec. 606; DeClerc v. Barber Asphalt Paving Co. (Ill.), 47 N. E. 367.]
From the foregoing authorities and principles here announced, it is apparent the judgment rendered by the trial court in this case was for the right party. It is ac-
cordingly affirmed.
Rehearing
ON PETITION FOR REHEARING.
We need not recall in considering this petition for rehearing the rule of universal application in appellate practice that appellate courts ivill determine cases on the same theory on which they were presented to the trial court. In the discharge of our duty under this rule — to ascertain upon what theory this case was tried and determined in the circuit court the impact of our opinion was placed upon the word “taxes” as used in the agreement in which the parties to this controversy stated their liabilities.
But appellant again appears and in a petition for rehearing and insists with much warmth and ability that we should consider this case upon a different the
From the point of view that is now presented in the petition for rehearing, the question to be determined, as stated in the motion is — “In an action for specific performance by the vendee, will the vendor be compelled to pay special assessments and improvements made after the making of the contract between them where the contract is silent in regard to the payment of such special assessments.” The appellant, in support of this theory, has cited a large number of decisions to the effect that after a sale of land to a vendee, if an assessment is made by a municipality for the betterment of the land— like the assessment in the present case for a sewer — the cost falls upon the purchaser.
Recurring to the written agreement on which this suit was founded, its terms provide for a lease of the premises with an option in the respondent to purchase the same. By its terms, until this option is exercised, the rights of . the parties are only those of lessor and lessee. The indenture wras entered into on the 1st day of December, 1904, and provided that Emma C. Johnson should pay a rental of twelve dollars and fifty cents per month from that date, and when her rental payments amounted to three hundred dollars, she should have the option to purchase the same upon giving her promissory note for nine hundred and.fifty dollars, securing it by a deed of trust on the premises. The special taxbill for the construction of a district sewer became a lien on the premises sold thirty days after the 3d day of May, 1905. It will thus be seen that at that time, the relation and rights of the parties to this suit was that of landlord and tenant and continued such for months after this charge was made upon the premises. So that the whole reasoning of the petition for rehearing proceeds upon the false basis that the respondent was in possession of the land as vendee, wh^u the fact is patent on the face of the agreement that she had not and