Mangold v. Isabella Furnace Co.

31 Pa. Super. 275 | Pa. Super. Ct. | 1906

Opinion by

Henderson, J.,

As between the county and borough and the appellant, the latter was liable for the tax, which is the subject o£ this action. He was the holder of the legal title and the assessment was a charge against him, personally, for payment of which his goods and chattels were subject to seizure, and in case sufficient goods and chattels were not found he was subject to arrest and imprisonment. The warrant of the tax collector required him to demand and receive from every person named in his duplicate the sum with which such person stood charged and such warrant was effectual to authorize the collection of the taxes assessed against the appellant. The assessment being regular and unappealed from, the tax authorities were not only not bound but had not power to look beyond the assessment roll. The appellant was also interested in the land as security for the payment of the purchase money due him. He was not limited to the individual responsibility of the defendant, but could also hold the title until payment of the purchase money was made. He was directly interested, therefore, in preventing a sale of the land for taxes, an occurrence which would have swept away both the title of the defendant and the plaintiff’s security. Such being the situation the appellant paid the taxes. That an obligation for the payment of them rested on the defendant does not seem to be controverted. It acquired an equitable title by articles of agreement and should have paid the taxes assessed after its purchase: Gheen v. Harris, 170 Pa. 644. The defendant having denied the validity of the contract of sale and having refused to be bound thereby, no other course was open to the plaintiff to relieve himself from personal liability and to avoid a sale of his security except to pay the charge against him and the land. It is unquestionably true that an action of assumpsit will not lie for the mere voluntary payment of the debt of another. A request and promise to pay are not implied by such an act. But this principle applies to intrusive payments. It has no application where one either by compulsion of law or to relieve himself from liability or to save himself from damage pays money which the defendant ought to have paid: 2 Greenleaf’s Evidence, sec. 114; Hogg v. Longstreth, 97 Pa. 255; Iron City Tool Works v. Long, 4 Sadler’s Pa. Supreme Ct. Cases, 57. The contention of the appellee that this principle does not apply to the case under consideration because no demand was made upon the defendant to pay the taxes and no seizure was made by the collector to enforce payment thereof, • is not well founded. A demand upon the defendant would have been a vain act in view of its attitude toward the contract. At the very time the taxes were assessed and afterward it was insisting that it was not the owner of the land and denying all responsibility on account of the contract. Nor can we hold that the payment was voluntary because the plaintiff did not wait until his property or person was threatened by the tax collector. It would be unreasonable to require him to submit to the seizure of his goods or to a personal arrest before he acquired the right to pay the charge and have an action for repayment against the defendant. Such a course would result in annoyance and perhaps humiliation to the plaintiff and the accumulation of costs and expenses, but would not increase his liability or in any way benefit the defendant. It was expressly held in Iron City Tool Works v. Long, above cited, that it was immaterial that no legal proceedings had been commenced to enforce the payment of the taxes and that it was not necessary for the plaintiffs in that case to wait until process was issued against them or their property before they paid the taxes which ought to have been paid by the defendants.

Out of the facts presented in the case stated an implied assumpsit arose in favor of the plaintiff upon which he was entitled to judgment. His right to judgment on part of his claim is denied, however, because $21.97 of the taxes due was paid while the action was pending on the contract between the parties, as to which payment it is said the principle of res judicata applies. The plaintiff’s claim in the present case, however, does not arise out of the written agreement, but out of the implied contract resulting from the payment of the taxes by him. It is an independent cause of action arising upon a new contract which came into existence after the original action was brought. At that time the present claim had no existence. The first action was on the contract in writing for a specific sum in the contract stated. No claim for taxes was then made or could then have been made, and as to the new cause of action we have no doubt that it may be now maintained.

The judgment is therefore reversed and judgment is now entered against the defendant in favor of the plaintiff for the amount of the plaintiff’s claim with interest and costs, the amount of the judgment to be liquidated by the prothonotary of the court below.