Lindell v. Brant , 19 Mo. 50 ( 1853 )

Ryland, Judge,

delivered the opinion of the court.

The opinion in the case of Finney v. Brant, just delivered, will also decide the main questions in this case. The refusal of the court to continue at the first term, the statute of limitations, the objection to the right of each plaintiff to sue separately, have each been settled in Finney’s case against Brant.

1. The additional matter in this case, not mentioned in Finney’s is, in regard to the construction of the agreement. (See the agreement as set forth in the opinion in Finney’s case.) Every such levy or assessment shall be upon each in proportion to the interest he holds in said tract of land. The county assessment, for the time being, shall be the rule of value, when the assessment shall be made.

Now the appellant contends that, whenever a call is made on the subscribers to the agreement for money to defray expenses, a new assessment must be made from the county assessment. To this -the plaintiff below answers : The valuation of the respective interests held in the tract is, by the terms of the agreement, not to be made by the parties or their agents, but is to be ascertained and adopted from the county assessor’s books. At the time this is agreed to be done, each is cognizant of the rights of all, and of the common danger. The valuation is one thing, the call for payment another. There is no need of but one valuation, but calls for money may be as often as expenses are incurred. The county assessment, for the time being, shall be the rule of value upon which the assessment shall be made. One assessment is provided for, but calls may be made, from time to time, as often as occasion may require. That one assessment is to conform to the county assessment for the time being, that is, when the individual assessment is made, or the settlement of the proportions, which is the same thing, is made. If every call is to be apportioned by a new valuation, then, whenever a bill of costs is to be paid, there must be a new valuation, which could hardly have been intended. The contract provides that every such levy or assessment “ shall be upon each one, in proportion to the interest which he holds in said tract of land” — that is, now holds, at the date of the agreement. In the opinion of the court, the plaintiff’s construction is the proper one ; otherwise, after these gentlemen had employed counsel, at the expense of ten thousand dollars, and after they had agreed to battle together against Glamorgan’s claim, for ten years, any number might have sold out and left the burden on a small part of the original subscribers, and there could be no future assessment on them; for, after sale, there would be in them no interest. Such never was the understanding ; the agreement was, to adopt the county assessment, in order to proportion the burden between the parties. IE the apportionment was made in order to ascertain how much each one’s property in the tract oE land was worth at the time oE the apportionment thus to be made, the county assessor’s books were to be .the rule of value, the basis of the individual responsibility, and upon- that basis any and every, call must bo made to rest. If, therefore, the first assessment was needed in 1845 or not until 1846, the assessment of the county was to form the rule for the individual assessment ; when once this rule was laid down, this proportion ascertained, it was enough ; any future call might be made upon the individuals, though such should have sold their interests after making the agreement.

Upon the whole case, it is the opinion of this court that the judgment below he affirmed,

Judge Scott concurring; Judge Gamble not sitting.