Lucas v. McCann

50 Mo. App. 638 | Mo. Ct. App. | 1892

Rombaueb, P. J.

— The plaintiff is lessor, one of the defendants is lessee, and the other two are assigns of the lessee, of certain premises in the city of St. Louis fronting on Market and Chestnut streets between Twelfth and Thirteenth. The plaintiff recovered a judgment herein against the three defendants for the aggregate amount of two special tax 'bills assessed during the term of the lease for street improvements. The defendants, appealing, assign for error that the petition fails to state a cause of action, and that the evidence fails to support the verdict.

■The petition states in substance the execution of the lease (containing the covenant hereinafter fully set out), and its assignment with the plaintiff’s consent. It then states that the municipal assembly of the city of St. Louis legally enacted ordinances to reconstruct Market and Chestnut streets between Twelfth and Eighteenth streets, that the work was let to a contractor who completed it, whereupon the president of the board of public improvements, having made the proper computation, assessed and issued the two special tax bills in controversy for amounts chargeable for such improvement against the property let to the defendant McCann, which fronted on such improvement; that, under the covenant of the lease, the defendants were liable to pay such taxes, but failed and refused to do so, whereupon the plaintiff paid them, and now sues to recover the amount so paid. The petition does state with unnecessary detail the history of the entire improvement, but does not state in so many, words that the ordinances were passed upon the recommendation of the board of public improvements. This alleged omission is claimed by the defendant, as fatal. "We know of no rule of pleading, that requires the plaintiff in an action of this kind to set out the evidentiary facts that go to show the validity of the tax or assessment. It would have been sufficient for him to allege in general terms that the tax bills were legally assessed and issued, since such tax bills, when formally correct, arq prima facie evidence of their own validity. If any fact exists to rebut this prima facie showing, it is matter' of defense. The petition in this case, instead of stating less than required, states a great deal more, and the defendants are in no position to complain.

The covenant of the lease sued .upon is in the following words: “The said party of the second part, for himself and legal representatives, hereby covenants with said lessor, or his heirs and legal representatives, to pay all city, county and all other taxes and demands of every description, nature or kind whatsoever, which may from time to time be legally required or demanded of said premises, whether general tax or special tax.” (The italics are our own.) The defendants contend that, under the rule of construction which requires that, when general words follow particular ones, the former are construed as applicable to things or persons previously mentioned, this covenant does not cover a special assessment or tax of this character. City of St. Louis v. Laughlin, 49 Mo. 563; Knox City v. Thompson, 19 Mo. App. 526. That argument entirely overlooks the fact, that the covenant, after binding the defendant to pay all city, county and state taxes, binds him to pay all other taxes and demands legally required of said premises, expressly mentioning special taxes. We have decided in Thomas v. Steam Pump Co., 22 Mo. App. 8, that the words, special tax, prima facie cover an assessment made for street improvements, and bave necessarily so -decided by implication in the later case of Clemens v. Knox, 31 Mo. App. 185. In the case at bar the defendant gave no evidence tending to show that these words were used in a different sense in this instrument, but the plaintiff gave evidence of a general understanding in this community to the effect that the term, special tax. means almost exclusively assessments of this character.

It results from the foregoing that the defendants’ second exception is likewise without merit, and that the judgment must be affirmed. So ordered.

All the judges concur.