City of San Antonio v. Grayburg Oil Co.

SMITH, J. In this cause the oil company brought suit against the city and recovered $247.50, alleged to have been involuntarily paid the city by the company, as taxes assessed in 1922, upon certain tank cars owned by the company, and maintained at the company’s domicile in another town. It is shown, and apparently conceded, that the tax was improperly assessed and collected, and the only defense urged to the oil company’s suit is that the tax was voluntarily paid and therefore is not recoverable. The chief inquiry, then, is, Was the payment of the taxes voluntary or involuntary? The trial court found that the payment was involuntary and was made under protest, and we have concluded that the evidence warranted that finding. It was shown that, when the company sought to Pay its taxes to the city for the year in question, it sent its check to the collector for the amount of the taxes assgssed against it, less the item' in question. ffThe tax collector refused to receive this'pkyment, demanding the entire amount assessed for all purposes, which aggregated about $2,000. The company was then confronted with the alternative of paying the questioned item, or defaulting in the payment of the entire amount, upon which the penalties provided by law would thereupon accrue at the rate of 2 per cent, a month. In such situation, and being required to act at once in order to avoid the accrual of the threatened penalty, the company paid the improperly assessed item, with the intention of subsequently taking such steps as would be necessary to recover the amount. The facts stated warranted the finding of the court that the taxes were paid involuntarily and under protest, and, the tax having been improperly assessed, the taxpayer is entitled to recover the amount thus paid. Galveston City Co. v. Galveston, 56 Tex. 486; City of Seguin v. Berman (Tex. Civ. App.) 205 S. W. 990, and authorities there cited. This conclusion disposes of appellant’s first proposition apd the assignment on which it is predicated/) Objection was made below to the testimony of the agent rendering the oil company’s properties, as to what properties she had so rendered, and as to the amount for which the tank cars were rendered. The objection to this testimony was that the “best evidence of the written rendition for taxation and the value of.the property as shown thereon being the rendition itself, such rendition should have been introduced in evidence and not the hearsay, self-serving declaration of” the witness who was the oil company’s secretary. Of course it is true that any written instrument is always the besl evidence of its own recitals, and the general rule prohibits the introduction of oral testimony of its contents, unless the party supposedly in possession of the instrument fails after timely notice to produce it, or it is shown to have been lost or destroyed. But there are exceptions to this rule. Here the city, of course, is presumably in possession of the written assessment, or rendition. When once executed and delivered to the assessor it became a public document, in the possession of the appropriate official, who has no authority to permit its removal from his custody except, of course, when lawfully required for some other public purpose. The taxpayer signing the rendition has no right to demand possession of it, and could not himself produce it in court, although by appropriate proceedings in a proper case he may compel its' production through process. We think in such situation, if it be true, as appellant contends, that the document was essential to the establishment of the facts forming the foundation of the suit, then the very nature of the suit put the city upon notice to produce it, and, being in possession of it, and not having done so, it cannot complain of the oral testimony of the facts recited in it. Jones, Ev. § 223; Ohamberlayne, Mod. Law Ev. § 3585; Lbr. Co. v. Tel. Co., 58 Tex. 394, 44 Am. Rep. 620; Ellis v. Sharp, 20 Tex. Civ. App. 482, 49 S. W. 409, and authorities there cited. It is also held, at least in some jurisdictions, and with apparent reason, that it is proper, and not in violation of the best evidence rule, that witnesses may testify orally to the facts that certain personal property was rendered for taxation, and- that a certain tax has been paid, and under this exception the testimony here complained of was properly admitted. Jones, lEv. § 203, citing Hewitt v. State, 121 Ind. 245, 23 N. E. 83; Davis v. Hare, 32 Ark. 386. Complaint is made of the sufficiency of the evidence to support some of the findings of fact filed by the trial court. We have ■ concluded, however, that the issues determined wére supported by some evidence, which though meager, is deemed sufficient, leaving us without authority to disturb those findings. On a trial by the judge the same rule applies to his finding as to the verdict of a jury,, and, unless the judgment amounts to a substantial denial of justice, which is assuredly not the case here, it should stand. The judgment is affirmed. .