Shields v. Sheffield , 79 Ala. 91 ( 1885 )

SOMERYILLE, J.

The count for money had and received would, no doubt, have been sufficient to cover every issue raised involving the rights of the litigating parties to the money in controversy. The plaintiff, however, elected to add another count, in which he states the facts upon which he bases his right of recovery. In doing this, he is required by the established rules of pleading, to state the facts o-r matter to be put in issue in an intelligible form, although such statement may be as brief as is consistent with perspicuity. It is a general rule, necessary for the proper understanding of the case by the court and jury, and to prevent surprise on the part of adversary litigants, that whatever is alleged in pleading must be alleged with reasonable certainty. Under this head falls the rule, that “pleadings must have certainty of time;” by which is meant, that the day, month, and year when each traversable fact occurred, must be stated, although matters of mere inducement and aggravation require no allegation of time. Nor need time be proved as alleged, unless in cases where it becomes matter of substance by reason of forming a material point in the merits of the case. Where, however, an act is continuous in its nature, as one extending through a given period of time, it is a sufficient compliance with the rule to state the period of its duration. — Stephen on Pleading, 292.

Under this rule, the plaintiff should have stated in what year or years the sums of money claimed by him accrued, or in what years the official services, upon which he bases his cause of action, were rendered by him in the capacity of a tax-collector. The second assignment of demurrer, raising this objection, should have been sustained.

The complaint fails, also, to allege any specific number of notices given by the plaintiff to delinquent tax-payers, or how many of such delinquents there ¿were from whom he could lawfully claim a fee of fifty cents, or from whom the defendant collected such fee. This number may not have exceeded a half dozen, and the names of these may have been known with certainty to the plaintiff. If their number was so large that a mention of them would have led to great prolixity, a general mode of statement should have been allowed, without any enumeration of the specific names of delinquents. The purpose of this rule is to prevent the incumbering of the record with a prolix and useless multiplicity of details, in the statement of a cause of action, or of a defense. The first ground of demurrer was well taken, in view of this principle. — Stephen on Pleading, *356, *359, *302.

The third ground pretermits the liability of the defendant which may have accrued in the event of his having proceeded to collect the fees in question, without protest or objection on the part of the tax-payers, although he was under no obligation to collect them, imposed either by law or by contract of the parties. This ground of demurrer was properly overruled.

The fourth ground was abandoned on argument at the bar, and needs no consideration. It was manifestly bad, and the court so pronounced it.

In order that the plaintiff, Sheffield, may be entitled to recover in this action, he must do so under one or the other of the two following state of facts:

First: He must show that the defendant acted, expressly or impliedly, as his agent, in collecting the fees in controversy. In this event, the defendant would be estopped from denying the liability which would be fastened on' him by reason of this relationship.

Second: If there was no such relationship, express, or implied, the plaintiff must show that he was legally entitled to the fees for which he sues, by reason of having complied with the statute which gives the fee.

The first aspect of the case requires but little by way of elaboration. The question of agency, would be one of fact for the jury to determine, and should be submitted to them as such. If Shields acted as the agent of the plaintiff, and collected these fees for him, he could not subsequently set up any claim to them himself, nor deny that the plaintiff was entitled to them for failure to give the requisite notices, or for any other neglect of duty. He would be precluded' from doing so, as we have said, by way of estoppel, even though the truth was to the contrary.

In the second contingency — that is, in the event of an agency being inferred — -the plaintiff would not, in equity and good conscience, be entitled to claim any fee, unless he shows a compliance with the statute which'authorizes him to charge such fee. lie must derive his'right from contract, or from law. If he fails to do either, he must be dismissed without recovery.

We entertain no doubt as to the proper construction of section 24 of the act approved February 11th, 1879, entitled “An act to incorporate the port of Mobile, and to provide for the government thereof,” under the provisions of which the present controversy has arisen. This statute clearly confers on the tax-Collectors of the port of Mobile no authority whatever to charge a fee for making a personal demand upon delinquent tax-payers for the amount of their taxes and costs. The fee of fifty cents, specified in this section, is allowed only where, in the event of the collector’s being unable to find such delinquents, he leaves “ a written or printed notice at the place of the residence of such tax-payers, requiring them to come forward and pay such taxes and costs immediately.” The statute declares, in so many words, that “for giving such notice the tax-collector shall collect fifty cents.” — Acts 1878-79, sec. 24, p. 406. Laws giving fees are stricti juris, and. must be construed accordingly.—Tillman v. Wood, 58 Ala. 578.

The Circuit Court erred in refusing to allow the defendant to prove that some of the notices were not given by the collector in the manner required by statute. This ruling could be correct, only on the theory that an agency existed ; and this the court had no right to assume as a fact conclusively proved. It is true that the jury may have inferred this fact from the conduct of the parties, but they may also have inferred the contrary.

The leaving of a written or printed notice with an agent of a delinquent tax-payer, at any other place than the residence of such delinquent, would not be a compliance with the law, unless it should be further proved that such notice w7as actually delivered to the person for whom it was intended.

The rulings of the court can be easily tested by these principles on another trial, it being kept in mind that no charge should be given by the court which would exclude from the jury either aspect of the case, which we have above discussed in the alternative.

The judgment must be reversed, and the cause remanded.