Thomas v. Hooker-Colville Steam Pump Co.

Rombauer, J., delivered the opinion of the court. This case involves the liability of the defendant lessee to pay a special tax or assessment for granite reconstruction of a street, which was assessed November 1, 1884, against the property demised. The covenant in the lease under which the liability is claimed to have arisen reads as follows-: “ Said lessee further agrees to pay all taxes, including the taxes for 1883, both general and special, which may be levied or assessed against said property during the term of this lease, the last taxes to be paid being 1892.” The cause was tried by the court without a jury, and judgment was rendered in favor of plaintiff. The defendant, appealing, assigns for error the improper admission and exclusion of evidence, and the giving of erroneous declarations of law. The defendant further claims that the evidence fails to support the verdict. As in the motion for new trial no complaint is made of the rulings of the court in rejecting and admitting evidence, we cannot, with propriety, consider that complaint here. Saxton v. Allen, 49 Mo. 417; Acock v. Acock, 57 Mo. 154, 156; Vineyard v. Matney, 68 Mo. 105. We will, therefore, proceed to the consideration of the other errors assigned. The complaint of the defendant that the evidence fails to support the verdict is based on what defendant claims to be the correct reading and interpretation of the covenant above recited. The defendant contends that the only correct grammatical construction of the language used is, that the lessee bound itself to pay the [566] general and special taxes of 1883 only, and for other years merely the general taxes ; that this clause ought to be made to read as if the words, “including the taxes of 1883, both general and special,” were included in brackets. The .utmost that can be claimed in support of that view is, that some latent ambiguity arises owing to the faulty grammatical construction of the sentence. If so, evidence was admissible as to what interpretation the parties contracting put upon it at the time they entered into the contract. The president of the defendant, who was one of the active parties contracting, testified on defendant’s behalf, and was silent on this subject. The plaintiff’s agent, who was the other active party, and who testified for plaintiff, gave evidence as to the understanding had at the time, that all taxes, both general and special, assessed during the entire term, were included by the terms of the covenant. In that state of the evidence the point now made, could not be saved by a general demurrer to the evidence, and that is the only way it was attempted to be raised, if at all, upon the trial of the cause. When the case was last before us (22 Mo. App. 11), we said, among other things: “The only question presented is, whether the words, ‘taxes, both general and special,’ as used in this contract between the parties, include an assessment made for the reconstruction of the street.” We also said: “In what sense the parties to this instrument used the term (special tax) must be determined as a matter of fact. The covenant is that of the defendant, and he is, prima facie, liable, because the term can and has frequently been used with propriety, to include assessments of this character. If these words, when inserted in instruments of this nature, have, by common, usage, or the interpretation put upon them generally by parties entering into similar contracts, received another and different meaning than the meaning contended for by the plaintiff, it is incumbent upon the-defendant to show that fact by answer.” The case then before us presented the sole question [567] whether the defendant was liable to pay this assessment under the terms of the covenant above recited, the execution of the lease and levy of assessment being admitted. In deciding that the petition setting out these facts stated a good cause of action, we necessarily decided that the assessment or tax was, prima facie, within the terms of the covenant, and that the defendant was, prima facie, liable to pay it. According to settled rules the decision then made is the law of the case, and the first instruction given for plaintiff is strictly in conformity with the law as thus established. The second instruction given for the plaintiff is as follows: “ Any usage, or interpretation, that the words, special taxes, did not cover the tax bill sued for, will not avail against plaintiffs or their testator, B. F. Thomas, unless such usage or interpretation were known to said Thomas at the making of said lease, or were so well established and universal that his knowledge thereof can be conclusively presumed.” This declaration of law would be correct enough if the matter under investigation had related to a general ' custom or usage in the community, but as it relates only to a particular class, namely, conveyancers, and those engaged in the letting of real estate, the second part of the declaration is too broad. Fitzsimmons v. Academy, 10 Mo. App. 594; s. c., 81 Mo. 37. It is evident, however, that, under the evidence, the declaration was necessarily harmless. All the witnesses concur that what is known as “granite reconstruction” is of recent date, and that prior to the execution of this lease it was a very rare thing, if known at all. Now it is essential that before a usage, general or special, can become a custom so as to enter into and form a part of a contract, there must have been time for it to grow up. Ober v. Carson, 62 Mo. 209. As this essential element of the proof was wholly missing in the evidence adduced by defendant, and as the burden of [568] proof on that subject was with the defendant, no declaration of law could be prejudicial to it. It results that ■ none of the assignments of error made by defendant are supported by the record. Judgment affirmed. All concur.