Russell v. City of Independence

Missouri Court of Appeals

Russell v. City of Independence

56 Mo. App. 527, 1894 Mo. App. LEXIS 107

DecidedFebruary 19, 1894

StatusPublished

This text of 56 Mo. App. 527 (Russell v. City of Independence) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Russell v. City of Independence, 56 Mo. App. 527, 1894 Mo. App. LEXIS 107 (Mo. Ct. App. 1894).

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Opinion

Gill, J.

— In 1887, Independence, then a city of the fourth class, let a contract to Ash & G-eiitry for grading a certain street, the cost thereof to be paid by abutting property owners, and the city not to be liable in any event. On the alleged completion of the work, tax bills were issued to Ash & G-entry, and a portion thereof were purchased by the plaintiffs who took an assignment from the contractors, Ash & Gentry.

The property owners failing to pay, Harkness & Russell employed L. A. Laughlin, an attorney, to collect the bills, by suit or otherwise. Thereupon Mr. Laughlin, being nominally joined by the city attorney of Independence, instituted g test suit in the circuit court, brought in the name of said city. The tax bills were there defeated, and the case was appealed to the supreme court, where the judgment of the lower court was affirmed. Independence v. Gates, 110 Mo. 384.

In the preparation of the case for trial in the supreme court, Mr. Laughlin,^ plaintiff’s attorney, secured abstracts to be printed, copies of ordinances and transcript of testimony to be made out, etc., and plaintiff’s thereafter paid such bills, taking an assignment to themselves of such accounts. Plaintiffs then requested the city to pay these respective accounts, [530]*530which.' was refused and this action was brought. On a a trial by the court below, without the aid of a jury, defendant had judgment, and plaintiffs appealed.

We can discover no theory of law or justice that will permit plaintiffs’ recovery. The suit on the tax bills, though nominally in the name of Independence, was, in truth and substance, the action of Harkness & Russell. They were the beneficiaries, and the city was at most, only the trustee of an express trust. Mr. Laughlin did not represent the city, and could'not by any arrangement he might make with the city attorney. The city attorney could not at the expense of the municipality, employ an assistant, unless authorized so to' do by the governing body. Crutchfield v. Warrensburg, 30 Mo. App. 456; Young v. Crawford, 23 Mo. App, 432; Mechem on Agency, sec. 813.

And no such authority was given by the city. Since, then, Independence could not be held to pay the plaintiffs’ counsel fees, earned in suit on .the tax bills, there can be no claim for his expenses in prosecuting the action. ■

There is no merit in plaintiffs’ ease, and the judgment of the lower court, which was for the defendant, will be affirmed.

All concur.

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Gill, J.

— In 1887, Independence, then a city of the fourth class, let a contract to Ash & G-eiitry for grading a certain street, the cost thereof to be paid by abutting property owners, and the city not to be liable in any event. On the alleged completion of the work, tax bills were issued to Ash & G-entry, and a portion thereof were purchased by the plaintiffs who took an assignment from the contractors, Ash & Gentry.

The property owners failing to pay, Harkness & Russell employed L. A. Laughlin, an attorney, to collect the bills, by suit or otherwise. Thereupon Mr. Laughlin, being nominally joined by the city attorney of Independence, instituted g test suit in the circuit court, brought in the name of said city. The tax bills were there defeated, and the case was appealed to the supreme court, where the judgment of the lower court was affirmed. Independence v. Gates, 110 Mo. 384.

In the preparation of the case for trial in the supreme court, Mr. Laughlin,^ plaintiff’s attorney, secured abstracts to be printed, copies of ordinances and transcript of testimony to be made out, etc., and plaintiff’s thereafter paid such bills, taking an assignment to themselves of such accounts. Plaintiffs then requested the city to pay these respective accounts, [530]*530which.' was refused and this action was brought. On a a trial by the court below, without the aid of a jury, defendant had judgment, and plaintiffs appealed.

We can discover no theory of law or justice that will permit plaintiffs’ recovery. The suit on the tax bills, though nominally in the name of Independence, was, in truth and substance, the action of Harkness & Russell. They were the beneficiaries, and the city was at most, only the trustee of an express trust. Mr. Laughlin did not represent the city, and could'not by any arrangement he might make with the city attorney. The city attorney could not at the expense of the municipality, employ an assistant, unless authorized so to' do by the governing body. Crutchfield v. Warrensburg, 30 Mo. App. 456; Young v. Crawford, 23 Mo. App, 432; Mechem on Agency, sec. 813.

And no such authority was given by the city. Since, then, Independence could not be held to pay the plaintiffs’ counsel fees, earned in suit on .the tax bills, there can be no claim for his expenses in prosecuting the action. ■

There is no merit in plaintiffs’ ease, and the judgment of the lower court, which was for the defendant, will be affirmed.

All concur.

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56 Mo. App. 527, 1894 Mo. App. LEXIS 107, Counsel Stack Legal Research, https://law.counselstack.com/opinion/russell-v-city-of-independence-moctapp-1894.

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