Johnson v. Dalrymple

NIXON, P. J.

(after stating the facts). — This is an action on a contract, in form a lease, with an option in the lessee, on conditions, to purchase the leased premises. It is manifest from an examination of the pleadings, evidence and judgment of the trial court that the only question we are required by this appeal to determine is whether the special taxbill for $70.81, for the construction of a district sewer, paid by the decedent, F. T. Mills, was included in the contractual obligation of the respondent “to pay all taxes from and after December 1st, 1904.”

The only means at the command of courts in cases like the present, to enable them to ascertain the intention of the parties to a contract, is to apply the well established canons of interpretation. The determination of the present case is therefor centered in small compass and all depends upon the meaning which ought to be given to the words “all taxes” which appear in the contract. Of course, in cases of this kind, the whole object of the inquiry is to ascertain the intention of the parties from the words they haye used. In proper cases, in which -written contracts are construed by courts, additional light can often he obtained by taking a general survey of the entire instrument, making the several parts consistent with each other. In this case, however, the contract is not fairly open to two constructions as there are no repugnant clauses to he reconciled; its terms are clear and unambiguous. The courts cannot make contracts for parties and can only interpret and enforce such agreements as the parties have seen fit to make.

The rule is of long standing and elementary that in the interpretation of a contract, “its words must be taken in their common, ordinary and usual sense, and when they are free from ambiguity and uncertainty, there is no room for construction.” [Roy v. Boteler, 40 Mo. App. 213; Missouri Edison Electric Co. v. Bry, 88 Mo. App. 135; Maginn v. Lancaster, 100 Mo. App. l. c. 130.]

The words “tax” and “taxation” received an authoritative construction by our Supreme Court more than fifty years ago in the case of Egyptian Levee Co. v. Hardin, in which the court used substantially these words: “The word Tax,’ in its ordinary and received sense, means a public imposition for governmental and public purposes, and not local assessments for municipal purposes.” [Egyptian Levee Co. v. Hardin, 27 Mo. 495-497.] A clear and consistent line of cases in this State from that time to the present has recognized the distinction between a tax in its ordinary sense and a local assessment for municipal purposes. [City of Clinton v. Henry County, 115 Mo. l. c. 563; McCutcheon v. Railroad, 72 Mo. App. l. c. 275; Palmyra v. Morton, 25 Mo. 593; Keith v. Gingham, 100 Mo. 300; Independence v. Gates, 110 Mo. 374; St. Louis v. Allen, 53 Mo. l. c. 52; Sheehan v. Good Samaritan Hospital, 50 Mo. l. c. 158; Barry v. Cemetery Ass’n, 10 Mo. App. 587; Neenan v. Smith, 50 Mo. l. c. 528.]

But we are not left with these decisions. The principles of legal interpretation here announced haye been applied to the interpretation of the word “tax”' as used in leases and covenants in other jurisdictions. The word “taxes,” as used in a covenant of a tenant whereby he covenants “to pmj all the taxes that may be assessed and levied within his term,” these courts hold must be presumed, in the absence of qualifying words or clauses, to be used in its common and ordinary acceptation and meaning, and therefore the tenant is not liable for grading and paving and gutter assessments. [Longmore v. Tiernan (Pa.), 3 Pittsb. R. 62, 64; Beals v. Providence Rubber Co. (R. I.), 23 Am. Rep. 472; Bolling v. Stokes (Va.), 21 Am. Dec. 606; DeClerc v. Barber Asphalt Paving Co. (Ill.), 47 N. E. 367.]

From the foregoing authorities and principles here announced, it is apparent the judgment rendered by the trial court in this case was for the right party. It is ac-

cordingly affirmed.

All concur.