text:
    COMMERCE TRUST COMPANY v. MARY KECK et al., Appellants.
    In Banc,
    June 19, 1920.
    1. ESTOPPEL: Principal Element. The principal element of estoppel is that one party by bis words or conduct bas induced another to do something be would not otherwise have done, and which will result in loss to said other if the inducing party is permitted to act contrary to bis inducement.
    2. -: Suit on Special Tax Bills: Bequest of Contractor. A written request of the contractor to enter into a contract with the city for the paving of a street, made by owners of abutting lots before the city confirmed the contract, it being neither alleged nor proven that the request induced him to undertake the work, or that he did so in reliance upon the request, or that any assurance was given him that the tax bill^ would be paid without any dispute of the accuracy of their amounts or their validity under the law, does not estop said owners, when sued on the tax bills, to defend on the ground that the tax bills are void or excessive.
    3. -: -: Acceptance of Damages. The awarding by the court of damages to the owner of lots arising from the grading of a street and her acceptance thereof do not estop her to contest the 283 Mo. — 14 validity of the special tax bills against her lots issued to the contractor in payment for the work.
    4. BLOCK: Definition. A plot of ground bounded by four streets is the ordinary definition of a city block; and the Charter of Kansas City does not define a city block bounded by four streets, for purposes of street improvement, to be half of such block, or anything less than the usual block.
    5. -: -: Unplatted Lots. The Charter of Kansas City, dealing with a benefit district for street paving, did not, by the phrase that “property so laid off” into “lots or blocks” or “lots and blocks,” mean that only land platted by the owner into lots and blocks shall be charged with the cost of grading a street. , It did not mean that when the land fronting on a street which has been graded is platted into lots, no matter how shallow they may be, the tax for the grading must be borne by them alone and only to the extent of one-half their depth, unless the land behind them has been platted also. It did not mean that the improvement district must be made to include only one-half of the platted lots fronting on the street to be improved, and the cost of the improvement taxed against that half, and nothing against the other half, simply because the lots lying behind them had not been platted. On the contrary, the charter means that the improvement district is to extend to the middle of the block, or in the discretion of the council to an alley therein, and the lots fronting on the street to the middle line or alley are to be charged with the cost.
    6. -: Bounded by Three Streets. A plot of ground three hundred feet square, bounded on three sides by established streets and on the fourth by a street one-half or more of the distance, is to be considered a city block under the Charter of Kansas City, and the street-paving district should be extended to its middle line, there being no alley.
    7. BENEFIT DISTRICT: Inequalities in Width. Where a large area on the west side of the street to be paved was excluded which should have been included, and a corresponding area on the east side was included, and the area west of the street included was from 43 to 53 feet wide and the area on the east side included was from >250 to 290 feet wide, and the benefit assessments were required to be made in proportion to value, exclusive of improvements, and the included paucels west of the street were valued at $800,000 and those on the east side at $657,515, and there is no showing why the smaller area was valued considerably higher than the larger one, or that the valuations were arbitrary or made in bad faith, or what was the value of the area wrongfully excluded . or whether it was benefited by the improvement, it cannot be held that, because of the mere irregularities and inequalities, the tax bills are void.

      8. INTEREST: Improvements Begun Under Old Charter. The right view to attach to the saving clauses of the Charter of Kansas City adopted in 1908 is that any proceeding for paving' a street begun under the old charter, pursuant to an expression of the will of the Common Council, whether the expression was made by resolution or ordinance, should proceed to completion according to the provisions of the old charter; and where the approval of the ordinance for paving a street antedated the new charter, the tax bills bear ten per cent, according to the old charter.
    9. ORDINANCE AND RESOLUTION. When a municipal charter empowers the legislative department to act by resolution, action by ordinance is a compliance therewith, since an ordinance is a more solemn and considered mode of acting than is a resolution.
    10. RAVING: Ordinance Changing Grade. Where the contractors had finished their work to the level the ordinance and contract required, and it was accepted as a complete performance of what they had agreed to do, their right to be paid for it is not impaired by the action of the city in changing the grade and authorizing a terminal railway company to cut the street to a lower level.
    11. - — : Erroneous Exclusion of Lands: Reduction of Bills. When land has been omitted from an assessment district that should have been included, the tax bills are not necessarily void. Where the charter gives ample authority to correct such errors, and evidence is available by which approximate accuracy in the amount of reduction that should be made may be ascertained, the bills will not be held to be wholly void, but will be properly reduced.
    12. -: -: -: Tender. Nor is the reduction to be denied because the property owner did not tender the amount actually due.
    Appeal from Jackson Circuit Court. — Hon. Thomas J. Seehorn, Judge.
    Reversed and remanded.

      Scarritt, Jones, Seddon é North and Cooper, Neel & Wright for appellants. .
    (1) Substantial quantities of land both as to area and value that were required under the Charter of Kansas City to bear ratable shares of the cost of this grading have been omitted from assessment and charge, and so the burden on defendants ’ property has been materially and unlawfully' increased; and so the tax bills are excessive and void, (a) As to the definition of a block or square: Standard Dictionary; Century Dictionary; Gilsonite Co. v. Fair Assn., 231 Mo. 601; Trust Co. v. Blakeley, 274 Mo. '58; City of Ottawa v. Barney, 10 Kan. 270; Olsson v. Topeka, 42 Kan. 709, 21 Pac. 219; Bowlus v. lola, 82 Kan. 774, 109 Pac. 405; Town of Fruita v. Williams, 33 Col. 157, 80 Pac. 132; Slater v. Fire & P. Board, 43 Col. 225, 96 Pac. 554. (b) As to excessive charge and void bill: Hamilton on Taxation by Spec. Assmts., sec. 542; 1 Page & Jones on Taxation by Assmt., secs. 118, 639, 645; In re New York Protestant Eps., 75 N. Y. 324; Spokane Falls v. Browne, 3 W ash. 84, 27 Pac. 1077; Klein v. Gravel Co., 162 Ind. 509, 70 N. E. 801; Chicago v. Baer, 41 111. 306; In re Klock, 51 N. Y. Supp. 909. (2) The taxing district as arbitrarily determined by the Charter of Kansas City and as applied to this particular proceeding, which leaves out of the taxed area lands in material quantities that are self-evidently benefited to the same degree and extent as lands similarly situated within the taxed area and so permits those lands to escape their share of the burden of paying for the grading ana the irrational inclusion and exclusion of lands in and from the assessed area resulting from a taxation district of a crazy quilt outline which has a depth of a foot or two in places and less than fifty feet in others and as much as 290 feet in others, is discriminatory and unconscionable; and so the tax bills are void under the Constitution of this State and under the Fourteenth Amendment to the Federal • Constitution requiring that no state shall deprive any person of property without due process of law or deny to any person within its jurisdiction the equal protection of the laws, and so the tax bill is void. Trust Co. v. Blakeley, 274 Mo. 52; Realty & Inv. Co. v. Granite Co., 240 U. S. 55, 60 L. Ed. 525, 245 U. S. 288; Independence v. Gates, 110 Mo. 385; Cole v. Skrainka, 105 Mo.'308; Nevada to use v. Eddy, 123 Mo. 557; Kirksville v. Coleman, 103 Mo. App. 215; Crane v. French, 50 Mo. App. 370; Mister v. City of Kansas, 18 Mo. App. 228. (3) The thx bills purport to bear on their face ten per cent from date, ‘while the Charter of Kansas City 1908, p. 338, art. 8, sec. 24, provides that such tax bills shall bear seven per cent, and so the tax bills are void, or at least the judgment which awarded interest at ten per cent is erroneous. Charter and Ord. Kansas City, 1909, p. 338, art. 8, sec. 24; Const. Mo. Art. 9, sec. 16; Kansas City v. Oil Co., 140 Mo.' 471; Barber Asphalt Co. v. Hayward, 248 Mo. 280; Charter and Ord. Kansas City, 1909, p. 478, art. 18, secs. 1, 2, 3; Charter and Ord. Kansas City, 1898, p. 137, art. 9, sec. 2 ; Page & Jones on Táxation by Assmts., 377. (4) Defendant Plaza Leasehold and Investment Company is not estopped to deny the validity of the assessment district. The other defendants are not affected by this alleged estoppel. Sleeper v. Bullen, 6 Kan. 183; Sedgwick on Stat. and Const. Law, 109; Coffin v. Tracy, 7 Pet. 276; Pav. & Const. Co. v. McGovern, 127 Cal. 638; Hickman v. .Kansas City, 120 Mo. 110; McLauren v. Grand Forks, 6 Dak. 397; Mayor v. Porter, 18 Md. 284; Steckert v. East Saginaw, 22 Mich. 104; Grant v. Bartholomew, 58 Neb. 839; Batty v. Hastings, 63 Neb. 26; Birdseye v. Clyde, 61 Oh. St. 27; Ardry v. Dallas, Í3 Tex. Civ. App. 442; O’Brien v. Wheelock, 184 U. S. 450, 46 L. Ed. 636; Zeigler v. Hopkins, 117 U. S. 683, 29 L. Ed. 1019.

      James E. Goodrich, B. G. Howard and Clarence 8. Palmer for respondent.
    (1) The district assessed with the cost of the grading is correctly determined under the Kansas City Charter. In every case the district extends back half way of the block where the land is “laid off on lots or blocks.” Sec. 5, art. 9, p. 142, Charter 1889; Sec. 3, art. 8, p. 315, Charter 1908; Crane v. French, 50 Mo. App. 367; Collier Estate Co. v. Paving Co., 180 Mo. 362, 383; Granite Co. v. Gast Realty Co., 259 Mo. 153, 165; Const Co. v. made in the benefit district and some land had been omitted which should have been assessed, the appellants had the right and it was their duty to show how much their assessment should have been reduced. Having failed to do this they cannot complain of the amount of the judgment against them. Sec. 18, art. 9, Charter 1889; Sec. 24, art. 8, Charter 1908; Neenan v. Smith, 60 Mo. 292; First Nat. Bank v. Arnoldia, 63 Mo. 229; First Nat. Bank v. Nelson, 64 Mo. 418;- Neil v. Ridge, 220 Mo. 233. (2) The taxing district established by the city charter and applied in this case is not subject to constitu-t tional objections. Granite Company v.- Gast Realty Co., 259 Mo. 153, 240 U. S. 658; Const. Co..v. Withnell, 269 Mo. 546; Withnell v. Const. Co., 259 U. S. 70; L. & N. Ry. Co. v. Barber Paving Co.,. 197 U. S. 430. (3) The proceedings for grading Main Street were begun under the charter of 1889, and by the terms of the Charter of .1908 the work was to be carried on and the tax bills issued in the manner provided by the prior charter. This continuance of the proceedings was not by virtue of a “superseded charter” but by the mandate of the new charter. Sec. 3, a.rt. 18, Charter 1908; Sec. 2, art. 9, Charter 1889; 2 Dillon on Municipal Corporations, sec. 571, pp. 894, 895; Central Railroad v. Bayonne, 52 N. ,T. L. 503; Los Angeles v. Waldron, 5'5 Cal. 283; Hellman v. Shoulters, 114 Cal. 135. But if the tax bills should have been issued under the Charter of 1908, the only difference would be that the interest would be 7 per cent instead of 10 per cent. Unless there was a tender appellants could not claim to be absolved from the payment of interest. Neenan v. Smith, 60 Mo. 292; Neil v. Ridge, 220 Mo. 233. (4) Plaza Leasehold & Investment Companv was clearly stopped from claiming that the contract of Spitcaufsky & Wagner was invalid when they signed it, and this appellant and Mary Keck are estopped from alleging that the provisions of the Kansas City Charter violate any constitutional guarantees. Plaza Leasehold and Investment Company expressly requested the contractors to sign the contract and proceed with the work. Mary Keck claimed and was awarded damages under the charter.' ' 0 ’Brien v. Wheelock, 184 U. S. 491; Daniels y. Tienney, 102 U. S. 414; Ferguson v. Landrum, 5 Bush, (68 Ky.) 230.
   GOODE, J.

The petition in this- case is in seven counts of similar tenor on as many special tax hills, issued against lots belonging to the defendants for the cost of grading Main Street, from Twenty-third Street on the north to Grand Avenue on the south. The taxed lots are numbered 28, 29, 80, 31 and 32, in Corrected Plat of City View Park, an addition to Kansas City, lying south of. the south line of Twenty-fourth Street, and two other lots described by metes and bounds in the same addition. One of the last mentioned lots was made by vacating an alley ten feet wide, and as thus formed, it fronts on the east side of Main Street and extends for one hundred and twenty feet along the rear ends of the numbered lots which front on Twenty-fourth Street. The other lot described by metes and bounds lies south of the alley lot and faces the east side of Main Street for a width not given, but indicated on the map in the record to be from thirteen to fifteen feet, and the depth to be one hundred and thirty-five feet. The location of those parcels of land is shown on the sketch map which goes with this statement, but is not a copy of the record map. Together the lots comprise a tract nearly square, at the southeast corner of Twenty-fourth and Main Streets, the whole of it lying south of Twenty-fourth Street. The numbers of the tax bills in suit and declared on in the different counts of the petition are: In the first count Bill No. 144, against Lot No. 28, for the amount of $1259.58; in the second count, Bill No. 145, against Lot No. 29, for the amount of $1259.58; in the third 'count, Bill No. 146, against Lot No. 30, for $1102.13; in the fourth couht, Bill No. 147, against Lot No. 31, for $1102.13; in the fifth count, Bill No. 148, against Lot No. 32, for $925.66; in the sixth count, Bill No. 149, against the said alley lot for $143.02; in count 7, Bill No. 150, against the second tract described by metes and bounds, for $392.96; all of said tax bills bearing the date, October 21, 1913.

The main defendant is the Plaza Leasehold & Investment Company, a corporation, hereafter referred to as the Plaza Company. The other defendants are Mary Keck, Louise Marold, Amelia Rollert, Frederick Keck, D. M. Allen, G. H. Davis, Hugh F. Tighe and James 0. Griggs. The different interests of the various defendants are nowhere shown in the record; but in the joint answer filed by all the defendants except the Plaza Company, they say they own or claim some interest in the real estate described in the different counts, and then adopt the answer and cross-petition of the Plaza Company. Said company was the conceded owner of the aforesaid lots when this action was begun. The answer and cross-petition of the Plaza Company set up eleven distinct defenses in as many paragraphs;- but only four of them have been renewed on this appeal and, therefore, no attention will be paid to the' others.

The first defense urged here is that substantial quantities of land, both in respect of areas and values, were omitted, which the Charter of Kansas City required to be included in the taxation or benefit district established to contain the tracts of land that should bear the burden of grading Main Street. The tracts alleged to have been improperly omitted are indicated on the sketch map by the capital letters A, B and C. The irregular heavy line shown on the map is the boundary of the assessment district, and runs from the slanting north line of Grand Avenue on the south to the south line of Twenty-third Street on the north.

Omitted Tract A will be obseryed to run north from the slanting north line of Plaza Road to Twenty-third Street, and to embrace the rear half of the lots abutting on the east line of Main Street (which are bisected by the line of the assessment district), and also a parallelogram of the same width to the east. All of the land abutting on the east side of Main Street, between Plaza Road and Twenty-third Street, is laid off into lots. One half of the depth of these lots, or 54.78 feet, is included in the assessment district; but the east half of said lots is excluded. The alleged omitted feet, is included in the assessment district; but the east half of said lots is excluded. The alleged omitted Tract A, contains said excluded east half of the lots, and a piece equally wide (54.78') still further east and defined on the east by the heavy fine shown on the map, marked at the ends D and E. The contention of the defendants is that the ground from Main Street on the west, to Westport Boad on the east, and from Twenty-third Street on the north to Twenty-fourth Street on the south, constitutes a block within the meaning of the city charter, and according to the charter the assessment district should have been carried east from Main Street to the middle of that block.

The plaintiff contends that as the ground lying east of Main Street had been platted into lots, the charter required the line of the assessment district to bisect the lots; that is, run 54.78 feet .east of Main Street.

If defendants are right, a tract in the form of an irregular parallelogram more than one, hundred and nine feet in width and more than three hundred feet long on its west line and something less on its east side (the exact dimensions are nowhere given in the record or on the plat filed with it) should have been embraced in the assessment district.

The second parcel of land asserted to have been omitted is designated by the letter WB” on the accompanying map, and consists of the west or rear half of part of Lot 5 and all of the west-half of Lots 6, 7, and 8, of the Corrected Plat of City View Park Addition. Those lots abut on the west side of Main Street and are assessed back from Main a depth of fifty-five feet, are about one hundred and ten feet deep and all the omitted portion is a parallelogram approximately fifty-five feet east and west by a longer distance north and south. It is impossible to ascertain from the record the exact dimensions of the parcel, as no figures are given.

The contention of defendants regarding this omitted tract is, that Baltimore Avenue and Main Street form the east and west boundaries of a block, and Twenty-third Street on the north and City View Avenue, plus the west part of Twenty-fifth Street (there being a jog in the Street), form the north and south boundaries of a block; that tbe lots on tbe east side of said block, and abutting on the west side of Main Street, run back to the north-and-south line ■ bisecting said block and, therefore, by the charter, the assessment line should have been carried back to said bisecting line, to-wit, to the west line of said Lots 5, 6, 7 and 8, instead of being drawn along the middle line of said lots.

The position of plaintiff is that as the land to the .west of said Lots 5, 6, 7 and 8, to Baltimore Avenue, is not laid off into lots, the'charter required the line of the assessment district to bisect the lots.

The third tract wrongly omitted, so defendants say, is designated by the letter 0, and the same reasons are assigned pro and con, why said parcel should have been included in the district, and why it should have been omitted, that are assigned by the respective parties regarding Tract B. The defendants contend the center line of the city block alleged to lie between Baltimore Avenue and Main Street and Twenty-third Street and City View Avenue, should have been made the west line of the assessment district, thereby taking in Tract C; whereas the plaintiff contends that as the ground to the west of Tract 0 was unplatted, the charter required the west line of the assessment district to bisect the lots which lie west of Main Street, and thus leave Tract C. to the west of the district.

The second defense is that the taxed district, when determined according to the charter, left out of the taxed area lands in material quantities which are evidently benefitted as much as lands similarly situated that are included within the taxed area, thus permitting the'excluded lands to escape the burden of the cost of grading, and throwing a correspondingly increased burden on the included lands. To distinguish with more precision between the first and the second defenses, we state that the former is that lands required by the terms of the charter to be included in the assessment district, were left out of it; the latter is that lands of large area lying to the east of Main Street were taxed, whereas lands equally benefitted (i. e. to the west of the Street) were left untaxed, because the district when laid out as the charter directed, could not include them.

Defendants point to the map which accompanies, the record, one so large we have been unable to reproduce it in detail, but instead, have made a sketch to help in making the facts clear. Said map shows the graded part of Main Street; what lands were taxed for the cost of the grading; what were omitted; the amount of the tax levied against each tract; the assessor’s valuation of each and the cost- of the work. The map also shows the breaks in the boundaries of the assessment district at points where the boundary lines either draw in close to Main Street or expand much beyond it. Between City View Avenue on the north and Twenty-fifth Street on the south, the depth of the district on the west side of Main Street is from forty-three feet to fifty-three feet plus; that is, the depth'is 43 feet at City View Avenue, and 53.85 at Twenty-fifth Street. East of Main Street and north of City View Avenue, the district extends back to a line drawn 290 feet east of Main Street. At the north end of the grading, to-wit, from Plaza Road to Twenty-third Street, over a dis-' tance of more than four hundred feet, the district is only fifty feet deep; whereas on the west side of Main Street, between Plaza Road and Twenty-third Street, it is 115 feet in depth. Just south of Plaza Road the district runs back 250 feet east of Main Street; or five times the depth on the west side, immediately north of Plaza Road.

. The method of assessing property in Kansas City for street grading is neither by the front foot nor by the area, but is based on the values placed by the City Assessor on the parcels to be assessed, regardless of the improvements on them, for the purpose of distributing the cost of a particular improvement among the different tracts included in a benefit district.

The plat which accompanies the record shows the valuations placed by the assessor on all the property in the district on both sides of the street, thereby enabling the amount of the taxes levied west of Main Street and the amount levied on the east to be ascertained.

The third defense deals with the interest on the tax bills, which is at the rate of ten per cent per annum, from their date until paid, or, in the event they were paid within thirty .days after their date, they bore no interest. Defendants argue that as the bills were issued after the Charter of 1908 had been adopted, they should have borne interest at the rate of seven per cent until paid, unless paid within thirty days after their date. Plaintiff says the work was begun under the Charter of 1S8B, and the rate stated in the bills is correct, citing Section 3, Article XVIII, of said Charter.

The fourth defense is that Ordinance 39125, approved March 31, 1908, which established the grades of Main Street at different points from Twenty-third on the north to Grand Avenue on the south, and Ordinance 39798, approved June 10, 1908, which provided for bringing the street to those grades, were both • repealed, as to said grades (before the contract for the work was let to the contractors Spiteaufsky & Wagner) by Ordinance 2336 (called the Kansas City Terminal Railway Franchise Ordinance, approved July 7, 1909), and were repealed again by Ordinance 9701, approved August 19,1911. This defense is met by the plaintiff with the proposition that Ordinance 2336 did not alter or undertake to alter the grade of Main Street, but simply established the grade of Union Station Plaza or Park, through which Main Street ran; that said grade for the park indicated that it would be necessary to cut Main Street at Twenty • fourth below the grades established by Ordinance 39125, in order to make the surface of the street where it runs through the park coincide with the surface of the park; but said ordinance did mot provide that it should be cut down. To further meet said defense' that the surface of Main Street from Twenty-fourth Street north was reduced below the surface provided for by Ordinance 39125, the plaintiff admits Ordinance 9701, approved August 19, 1911, actually called for a change of the previously established grades north of Twenty-fourth Street to a level seven or eight feet lower; but says this ordinance was passed after the contract for the grading had been let to Spitcanfsky & Wagner for the grading of the street to the levels fixed by Ordinance 39125; and that said contractors had performed fully their contract by bringing the grade down to the levels specified; that no work was done to reduce the street from Twenty-fourth to Twenty-third to the level fixed by Ordinance 9701, until after the contract of Spitcanfsky & Wagner had been completely executed, accepted by the city as in compliance with their agreement, and they had "become entitled to tax bills to pay for it; that said contractors had nothing to do with cutting the street down to conform to Ordinance 9701, but said reduction of the grade was done, with the consent of the city, by the Kansas City Terminal Railroad Company in connection with the grading of Union Station Park, which said company did also.

By way of estoppel the plaintiff pleads that the Plaza Company requested Spitcaufsky & Wagner, in writing, to accept the proposed contract with the city fon grading Main Street between Twenty-third and Twenty - fourth streets, according to the terms of the contract be ween them and the city, and that this request was made, before the contract was entered into between Spitcaufsky & Wagner and the city.

It also pleads by way of estoppel against Mary Keck, that she was a party to a suit instituted in the Circu H Court of Jackson County, on July 28. 1908. and subsequent to the passage of Ordinance 39798, under which the grading was done; a suit filed to-'determine the damages and benefits which would be. caused .to the abutting properties by the grading; further, that all the .owners of the property described in the petition in this case were made parties to said proceeding, and Mary Keck, the then owner of said property, claimed and was allowed damages for "the- proposed change of grade; that the cause'went-'to-a final judgment determining the damages and benefits that would be caused by the grading; wherefore the then owner and all subsequent owners were estopped to claim Ordinance 39798 was not a valid ordinance, because its validity was adjudged in said proceeding. ■ • $ ¡WWiM®^'

Tbe ordinance under which the work was done, to-wit, No. 39798, was approved June 10, 1908, and the contract for the work was confirmed by the city and became effective November 30, 1910.

Judgment was rendered on each count of the petition for the amount of the tax bill declared on in it, together with interest at ten per cent per annum from October 21, 1913. The defendants appealed.

(To avoid possible confusion regarding the present case with the case of Dickey v. Seested, 283 Mo. 167, wherein cross-appeals were taken, it should be said the latter case, and others like it, were on tax bills issued for a regrading of Main Street from Twenty-fourth Street to Grand Avenue, under a different ordinance and contract passed and entered into, subsequent to the grading involved in the present case.)

Estoppel

I. The estoppel pleaded by the plaintiff against defendants, or two of them, the Plaza Company and Mary Keck, is without merit. The Plaza Company signed a rec™es^ Spitcaufsky & Wagner to enter into the contract with the city before the city confirmed the contract; but it is neither alleged nor proved the request induced the contractors to undertake the work, or that they did so in reliance on the request. The Plaza Company and the other petitioners had no assurance that the tax bills would be paid without any dispute of the accuracy of their amounts or their validity under the law. The written request contained no representations that in the least tended to raise an estoppel against the defense that the bills are either void or excessive. The principal element of an estoppel is that one party by his words or conduct has induced another to do something which otherwise he would not have done, and which will result in loss to him if the inducing party is permitted to act contrary to the words or conduct relied on by the other. [Thompson v. Lindsay, 242 Mo. 53.]

Mary Keck, one of the defendants and owner of the lots, was made a defendant in a proceeding to assess the damages and benefits which would be caused by the grading of Main Street, and was awarded damages by the commissioners as the owner of Lots 29 and 32 inclusive herein involved. The commissioners and the court must have determined the work would damage her property ; but how does that fact bear on her right to contest the tax bills'? The awarding of damages to her, or her acceptance of the award (which by the way, was not in proof), had nothing to do with the acceptance of the contract by Spitcanfsky & "Wagner. The matter was between the city and her, and cannot be held to have constituted a waiver by her of the right to contest the tax bills if they were issued for excessive amounts or pursuant- to invalid proceedings.

Block

II. Three parcels of land are said to have been left oht of the assessment district which the charter required to be included. Of these parcels “A” contains three an<^ one-fourth acres and is of smaller size than the ordinary block in Kansas City. It is bounded by four streets, thus falling within one definition of a city block. [Gilsonite Co. v. St. Louis Fair Assn., 231 Mo. 589, 601.] The word “block” must be given another meaning sometimes to prevent an unjust or unreasonable result, and this was done in construing the clause of the Charter of Kansas City with which we are now concerned in order to determine whether or not tracts of land containing from eight to ten acres, surrounded, by streets, but through which other streets were likely to be opened, were blocks in the charter sense, and it was held they were not. [Commerce Trust Co. v. Blakely, 274 Mo. 52.] In the present case Tract “A” in its boundaries and dimensions fulfils so completely the common notion and the common definition of a city block that it ought to be" regarded as one, unless the charter is inconsistent with that view. Thus regarded.the true east boundary line of the assessment district would be the line “D” — “E” on the map, or half way from Main Street on the west, to Westport Road on the east, and a strip 109.56 feet wide would be added tb the district on the east. It is argued for plaintiff that the words of the charter, and the effect given to them by the Kansas City Court of Appeals in Crane v. French, 50 Mo. App. 367, required the east boundary of the district to bisect the series of lots, seventeen or eighteen in number, which front on Main Street from Twenty-third on the north nearly to Plaza Road on the south, where, in consequence of the slanting course of Plaza Road, the lots pinch out. If we understand rightly the argument, it is that the phrase “property so laid off” into “lots or blocks” (the conjunction “or” is used in first clause, and “and” in the second) means that only land platted by an owner into lots and blocks shall be charged with the cost of grading, and that when the land fronting on a street which has been graded is platted into lots, no matter how shallow they may be, the tax for the grading must be borne by them alone and only to the extent of one-half their depth, unless the land behind them has been platted also, in which case the charge must be extended back to the middle line of the block. The practical effect of that interpretation of the charter is to make a block of every series of abutting lots, regardless of their depth, if the land behind them had not been laid off in lots; a view which causes the boundaries of improvement districts to depend, in some measure, on the different depths given by proprietors to lots they plat. On this theory it is contended the lots in Peck’s Subdivision are a block, and the district must extend no farther than the middle line of them.

It is said the word “lot” has been held to mean a lot shown on a recorded plat, and Collier Estate v. Paving & Supply Co., 180 Mo. 362, 383, is cited. But that definition in no way assists the argument that a series of platted lots constitute a block within the sense of the Kansas City Charter. The charter did not intend such a result, nor are its provisions consistent with it. The dominant purpose of the charter was to achieve approximate uniformity and equality in taxing for street improvements. To.this end it provided that when the land to be charged had not been laid off into lots and blocks; the cost should be imposed according to the value of the land for 150 feet back from the improved street; if it had been laid off into “lots or blocks” or “lots and blocks” (the two phrases obviously are used synonymously in the Charter of 1889) the taxation district must reach back to the middle of the block, which would be about one hundred and fifty feet in the case of ordinary blocks. The theory of the plaintiff that the line of a district must bisect the lots fronting the improvement, when the land behind them is unplatted, is erroneous as shown by this provision of the charter: “Nevertheless the Common Council shall have power by ordinance to prescribe that such land shall not be charged beyond the alleys in such blocks, if deemed just and equitable. ” Said provision makes it clear the charter intended the cost of improving a street where the abutting land had been laid off into lots and -blocks, should, as a general rule, be imposed to the center of the block, but subject to an exception if the Council deemed it right to stop the district at an alley on the rear of the lots. The point decided in Crane v. French, was that the particular parcel (about two acres in all) there involved, could not be taxed for the improvement of a street, because it did not front on the street. True, the remark was made that the parcel was not laid off in lots, but it is difficult to perceive how that circumstance could have affected its liability to be assessed; and the map which accompanies the opinion shows the platted lots were not bisected by the boundary line; • but, on the contrary, said line ran along the rear of those lots. The opinion expressly declares the boundary of the district should be the center line of the block. The construction contended for by plaintiff would lead to manifestly unjust and irrational consequences, as appears from the argumeiit advanced that abutting lots ten feet deep could only be taxed one-half their depth if the land in the rear of them had not been platted. An irrational interpretation should not be given to a statute, if it is possible to give a rational one. [Hawkins v. Smith, 242 Mo. 688.]

The framers of the charter, in providing what land should bear the cost of grading streets, had in mind, we think, a city block of the ordinary size, and made one-half its depth, or about 150 feet, the measure of the depth of the area to be charged. But blocks occur in the city of other dimensions and in such cases it may be necessary to give to the word “block” another meaning than that of a piece of land bounded by four streets, as was done in the Blakeley case. Parcel “A” is a block in all essential particulars of size, length, breadth and boundaries, and the east line of the improvement district should have been drawn along the middle of the block.

Parcels “B” and “C” lack nothing of lying in blocks, except that one street in the case of each of them has not been pushed through westward to Baltimore Avenue; Esplanade and Twenty-fourth streets stop about 118 feet short of Baltimore Avenue. They may be carried through at any time; but regardless of that possibility, the parcels “B” and “C” ought to be regarded as lying in blocks within the meaning of the charter, in view of the fact that they lie along with platted lots in larger areas, which are surrounded on three sides by streets. If the aforesaid streets bounding either of the tracts in which the parcels lie, had been carried 118 feet farther west, the areas or tracts wherein lie parcels “B” and “ 0” would have been bounded on all sides by streets, and as it is these boundaries are nearly complete. If we treat those areas as blocks, the assessment district will take in “B” and “C,” and the district for taxation wHl conform to the charter by reaching back to the middle line of the blocks. If the tracts wherein lie “B” and “0” are held not to be blocks because one- of the inclosing streets does not run through to the street in the rear, then the line of the district will fall 150 feet in the rear of Main Street, thereby taking in the omitted parcels and also land to the west of them and west of an alley which runs behind them; a result less in harmony with the intention of the charter and a just apportionment.

inwrdth!eS

III. Complaint is made that a large area of land was left outside the west boundary of the assessment district, west of Main Street and south of Twenty-fourth, while a corresponding area was included in it east of Main; also that north of Twenty-fourth Street on the west side of Main, the district is about 115 feet wide and on the east side is only 55 feet. If the defendants are right in their position, these irregularities operated to their detriment by excluding from the district property that should have been included, thereby throwing on their lots a part of the tax which should have been levied against property omitted. We have stated above how much wider the district is east of Main Street than west of it from Twenty-fifth Street and City View Avenue on the south to Twenty-fourth Street on the north; to-wit: from 43 to 53 feet wide west of Main and from 250 to 290 feet wide east of it, as shown in the statement of facts. An inequality of that magnitude is said to make the assessment against defendants unconstitutional and void under the authority of Gast Realty Co. v. Schneider Granite Co., 240 U. S. 55, and Commerce Trust Co. v. Blakely, 274 Mo. 52. There is a fundamental difference between this case and the GastSchneider case; for in the latter the cost of the improvement was levied in compliance with the Charter of St. Louis, on the area of property in the benefit district; whereas in the present case it was levied in compliance with the Charter of Kansas City on the benefited lands according to the value of the various parcels, exclusive of the improvements on them, in the benefit, district, as determined by the’ City Assessor; presumably for the reason they were supposed to be benefited in proportion to their respective values. [Charter 1889 — see Charter & Rev. Ord. (1898 Ed.) Art. IX, sec. 5, pp. 142 et seq; Charter 1908, Art. VIII, sec. 3, p. 314.] The valuations which determine the tax each tract must hear, are not those ascertained as the basis for ordinary taxes, but those made for the purpose of distributing the cost of the particular improvement. The latter valuations run much higher than those of the ger mal assessment, and are intended to approximate the true value. A computation made from the figures shown on the plat in the record, which is conceded to be accurate, of the valuations placed by the assessor on the tracts on the two sides of the street shows the properties on the west of Main Street were found to be worth $800,000, and those on the east $657,515. The record is silent regarding this disparity and. throws no light on the question which naturally occurs, of why the smaller area was estimated to be of considerably more value than the larger area. ' The estimates were attacked in the answer as arbitrary and made in bad faith; but no evidence was offered to support those allegations and the defense on that ground has not been presented on the appeal. The tracts to the west may possess advantages of some kind, for business not possessed by those on the east. The cost of the improvement was thirteen cents, plus, on every dollar of the assessed values on both sides, and the larger part of the cost fell, therefore, on the west-side tracts.

The foregoing facts do not meet fully the contention of the defendants that the irregularities in the width of the district cast an unjust part of the cost on their lots and to an extent which renders the tax bills void; for they argue that if an area had been taken in west of 'Main Street equal to the area taken in east of it, the district would have ‘ embraced much more land than it did, thereby lightening their burden in proportion to the part of the costs which would have been levied against the land taken in. That this is true is patent; but in the absence of any showing as to the value of the area which would have been brought in by making the district as wide on one side as on the other, we cannot know that the amounts of defendants’ tax bills would have been so much less than they are as to justify us in holding them unconstitutional and void. The difference may have been little, and small irregularities in distributing taxes do not make the apportionment void.

There is another pertinent consideration; it may be the topography of the ground west of the west boundary of the district was such that the improvement conferred no benefit on that ground. Regarding those facts which are material to this defense, nothing has been shown; yet we are asked to declare the bills void merely because of the disparity of the taxed areas on the two sides of Main Street. The improvement in the case at bar having been one to be paid for in proportion to values and not areas, we.hold the evidence is insufficient to bring it within either the decision or the principle of the decision in Gast Realty Co. v. Schneider Granite Co., supra.

On a first reading, the case of Commerce Trust Co. v. Blakely, recently decided by this court, appears to resemble this one closely; but when studied attentively is found to be different. In it the court construed the identical charter provision we are concerned with, but only in order to determine whether a demurrer to the defendants ’ answer should have been sustained, and the decision was the demurrer should have been overruled. The answer is not copied, a summary of its facts being -given instead. From the' stated facts it appears the answer pleaded a disparity greater than we have here in the areas of the taxed district on the two sides of the improved street, and also “that nearly two-thirds of the total amount assessed was assessed against property east of Wyandotte Street.” (L. c. 57.) That is, we suppose, against the property-on the side where the defendant’s lot lay. This course was followed in consequence of construing the city charter to require a special tax district to be carried back to the middle of a block, as laid out on a plat, whatever the size of the block might be; a construction held to be erroneous. For those reasons it was ruled the demurrer to the answer was not well taken. In the present case the burden of taxation fell more on the west side ot the street, and the property of the defendants is on the east side. In this ease the defense we are considering is not founded on an erroneous meaning given to the -word “block” as used in the charter, although the previous defense involves somewhat the meaning of the word. The Blakely'case is not controlling in favor of the defendants upon the immediate question.

interest n eres '

'IV. The Charter of 1889, in the clause relating to interest on tax bills, reads: “Every special tax bill, if Pa]'d within thirty days from the date of issue, shall bear no interest; if not paid within such time, shall bear interest from the date of issue at the rate of ten per cent per annum, except as herein otherwise provided.” [Ann. Char. & Rev. Ord.. 1898, Art. 9, sec. 18, p. 153.]

Ordinance 39798, for the grading of Main Street, was approved June 10,1908, hence antedated the new charter, which became effective August 4, 1908. The new charter did not annul everything enacted prior to its adoption, but contained saving clauses, namely: that all ordinances, regulations and resolutions in force when it took effect and consistent with it, should remain in force until modified or repealed by the Common Council; that all measures and proceedings under consideration in the Common Council, or either house of it, at the time of the adoption of the new charter, and consistent with it, should remain unaffected and might be acted on and disposed of as though they had originated under it. [Char. 1908, art. 18, secs. 1 and 2'.] Section 3 of the same- article, which bears more directly upon the point in hand, reads:

“Any street’ paving or repaving or other public improvement declared to be necessary by any resolution which shall have been passed by both houses of the Common Council of Kansas City, Missouri, prior to the time this charter goes into effect, shall be made and +he tax bills in payment thereof shall be issued and all proceedings appertaining thereto shall be carried out under the provisions of the charter and ordinances existing at the time of the passage of the original resolution declaring such street paving or repaving to be necessary; and the adoption of this charter or any ordinance thereunder shall in no wise affect the validity of or render illegal any proceeding of the Board of Public Works or Board of Park Commissioners or of the Common Council or of the City of Kansas City, or of any officer or agent thereof which has been or shall be had or carried out in accordance with the provisions of the charter and ordinances existing at the time of the passage of said original resolution, but any and all such proceedings shall be legal and valid.”

The precise point argued by defendants is that Section 3 of the new charter purported to authorize the completion of and payment for public improvements, according to the provisions of the old charter, only when such improvements had been declared necessary by a resolution passed by both houses of the Common Council, and that the grading of Main Street had never been declared necessary by a resolution, but instead had been provided for only by an ordinance; therefore did not come within the saving efficacy of Section 3. This is too narrow an interpretation of the section, and if adopted it would go far toward frustrating its purpose. The old charter did not imperatively require a resolution of the Council that a public improvement was necessary, except in the single instance of paving, repaving, blocking, gravelling, etc., of a street which was not a business street. [Ann. Char. & Ord. 1898, art. 9, sec. 2, p. 137.] According to the cited section from the old charter, the Council might provide by ordinance, without any preliminary resolution, for other public improvements. Manifestly the new charter does not mean that no proceeding already commenced under the old charter for street work, should be finished and paid for according to the terms of said charter, except the work of paving, etc., a street not used for business. The language of Section 3 will bear that meaning; but viewed in the light of the purpose to be subserved, the right meaning to attach to it is that any proceeding for improvements begun under the old charter, pursuant to an expression of the will of the Common Council, whether the expression was made by resolution or ordinance, -should progress to completion according to the provisions of the old charter. All public improvements under the Charter of 1889, were required to be authorized finally by an ordinance; but in the case of only one particular kind was a resolution also required to be passed prior to the ordinance and declaring the necessity of the work, We consider it too plain for controversy, that although the word “resolution” is used in Section 3, the object of' the section is to save from the. operation of the new charter the proceedings for any public work which the Common Council had previously authorized in either mode by which its will might be expressed. When a municipal charter empowers the legislative department of the municipality to act by resolution, action by ordinance is held generally to be a compliance with the charter; for an ordinance is a more solemn and considered mode of acting than a resolution. [2 Dillon, Mun. Corp. (5 Ed.) sec. 571; Railroad v. Bayonne, 52 N. J. L. 503, 508; Los Angeles v. Waldron, 65 Cal. 283; Hellman v. Shoulters, 114 Cal. 136.] The tax bills were rightly issued to bear interest at the rate of ten per cent.

Grad<flng'

V. The record supports the position of the plaintiff that the grades fixed for Main Street by Ordinance 39125, and to which the contractors were required by their contract to reduce the street, were not changed by Ordinance 2336, called the Terminal Railway Franchise Ordinance, which was passed before the contract with Spitcaufsky & Wagner was confirmed November 30, 1910. If it had altered the grades, probably there would be weight in the argument that a contract to bring the street to grades previously abrogated, infringed the rights of abutting owners and of the owners of tracts to be assessed for the work.. Without setting out the terms of Ordinance 2336, we state that it did not affect the grades of the street ■further south than the south line of Twenty-third street, which was the north boundary limit of the part of the street Spitcaufsky & Wagner were to grade; that is to say, they were to and did grade from Twenty-third Street south to Twenty-séventh Street or Grand Avenue, according to the levels fixed by Ordinance 39125.

. Ordinance 9701 altered the grades from the south line'of 29th Street to the center line of 24th Street; but that ordinance became effective August 19, 1911, or nearly a year subsequent to the date of the contract between the city and- the contractors, for a grading conforming to Ordinance 39125. The contractors finished their work to the level the contract required, and it was accepted by the city as a complete performance of what they had agreed to do. The right' of the contractors to perform their undertaking and be paid for it was not impaired by the conduct of the city in changing the grades and authorizing the Kansas City Terminal RailWay Company to cut the street to a lower level north of Twenty-fourth Street, before the contractors had finished.

^ Abatement.

VI. The defendants say no abatement from the amount of the bills in suit on account of the omitted tracts can be made, because the assessment against the various benefited parcels is based upon the valuation of the Citv Assessor, and it is impossible to . , . .. . ., . , know what valuations he would have put on the omitted tracts; therefore, it is impossible to know how much ought to be taken off the bills in suit; wherefore the bills must be held void.' It is true we cannot know exactly the values the City Assessor would have given to the outlying parcels, and so cannot ascertain exactly the amount that ought to be deducted from the bills in suit. Nevertheless approximate accuracy can be attained. Testimony can be introduced, including the City Assessor’s, as to what is the value of those parcels; and from that testimony the court can determine how' much to abate from the bills. The defendants themselves, in their brief, undertake to show the value of the excluded parcels, estimated in proportion to the value put by the City Assessor on those included, and assert the three parcels were worth a total of $471,282; which is rather exact. .

We are cited to authorities holding that when land has been ■ omitted from an assessment district that should have been included, the omission renders the tax bills void. [Hamilton, Special Assmts., sec. 542; Page & Jones, Taxation by Assmts., secs. 630, 645; Matter of New York School, 75 N. Y. 324; Spokane Falls v. Browne, 3 Wash. 84; Klein v. Gravel Co., 162 Ind. 509; Chicago v. Baer, 41 Ill. 306; In re Klock, 51 N. Y. Supp. 897.] The cited decisions deal with assessments where there was_ no authority given by the statute under which the work was done to correct errors. In our opinion the Kansas City Charter gives ample authority for correcting the error in question. The provisions made in it for the correction of errors in tax bills, has been construed by this court on several occasions; one involving a prior charter with substantially the same provision; and the other the Charter of 1889, under which the present work was done. In both cases the ruling was that the charter authority was broad enough to permit the correction of mistakes, not only in calculation and the apportionment of the cost of construction, but other mistakes. [First Nat. Bank v. Nelson, 64 Mo. 418; Neil v. Ridge, 220 Mo. 233.]

In the case cited first, the grading was for a sidewalk on both sides of a street; but the cost was wrongly apportioned between' the two sides. The court held the charter provisions did not confine the power of correction “to mere mistakes in calculations upon correct data, but it equally extends, in our judgment, to correct calculations' upon wrong data. The error in this tax bill was not error in the apportionment of the costs on the basis adopted, but the error was in the basis upon which it was made-” These remarks are pertinent to the present case and are quoted with approval in the later case of Neil v. Ridge. In the opinion in the later ease the expression is used that the power of correction embraces errors and mistakes of every character and nature which are susceptible of an absolute determination by the trial court. That remark was not essential to the decision and was a dictum.

C Still more pertinent is the case of Creamer v. McCune, 7 Mo. App. 91, where the tax bill was too large by reason of certain property having been omitted from the district, and it was held the trial court should have corrected the error and rendered judgment for the proper amount. See, too, Johnson v. Duer, 115 Mo. 356, where it was held that under the Charter of Kansas City a tax bill for sewer work was not invalidated by the fact that it included the cost of a part of the .sewer laid through private property instead of along the street; but was good for the cost of the sewer in the street; also, Dickey v. Porter, 203 Mo. 1, 29, where there was a contention by the defendant that the tax bill issued for a portion of the cost of the construction of a sewer was void, because Inore masonry was put in than was required by the contract. This court held if' that were true, the effect was no more than to entitle the defendant to a credit for the cost of the masonry in excess of the contract. We hold it is within the power of the trial court to determine from evidence the amount that ought to be deducted from the tax bills in question by reason of the parcels omitted from the district.

, T6nd.er

But the plaintiff insists that the defendants are not entitled to a deduction because they did not tender to plaintiff, as holder of the bills, the amount which they admitted was due, after deducting for the omitted tracts. That portion of the charter provision in ques-x x tion simply determines whether or not the costs shall be adjudged against the defendant in a tax bill suit who claims he is entitled to a deduction. If he tenders the full cost of the work and establishes at the trial that he has done so, then he is not oast in costs. Tbe clause does not undertake to deny him any relief from tbe excess merely because he did not make a tender of tbe amount of tbe bill, minus such excess.

Tbe judgment is reversed and tbe cause remanded.

All concur, except Woodson, J., absent.


source: Caselaw Access Project

author: BLAIR, J.

license: Public Domain

text:
    JEAN B. BOULICAULT et al. v. ORIEL GLASS COMPANY et al.; LOUIS T. MAGUIRE, Appellant.
    In Banc,
    June 19, 1920.
    1. MONEY JUDGMENT: Equitable Proceeding. In an equity suit brought by a majority of the stockholders of a corporation against it and its president to recover from him money embezzled by its bookkeeper, a money judgment may be rendered against the president in favor of the company. [Distinguishing State ex rel. v. Foster, 225 Mo. 171.]
    2. EVIDENCE: Motion to Strike Out. If the answer is responsive to the question, a motion to strike it out, no objection having been previously made, comes too late.
    3. -: Removal of President of Corporation. A statement by the court that he could not select officers for the corporation and that if the president were removed the directors would have to choose his successor is a sufficient answer to a complaint that the court did, not permit an examination of the plaintiff directors concerning their capacity to act as president.
    4. LACHES: Stockholder. A stockholder of a corporation, who is not a director, is under no obligation to examine the company’s books for the purpose of ascertaining whether its bookkeeper has been embezzling its funds, and is not chargeable with laches in not discovering the fact sooner, but has the right to rely upon the directors and officers to conduct its business properly. .
    5. -: Director: Neglect of Duty. Where the president is manager and treasurer and in charge of the finances of a corporation and its principal stockholder, whether another director, who was simply Superintendent of the manufacturing plant, was guilty of laches in not discovering the embezzlement of a bookkeeper which had gone on through a series of years, depends on whether he neglected a duty the performance of which would 'have led to discovery or knowledge; and in this case it is held that he is not chargeable with neglect of duty.
    6. CORPORATION: Duty of Directors: Ordinary Care. For failure to perform their duties as such, directors of a~corporation become liable for corporate losses resulting therefrom. They are required to exercise the care that ordinarily prudent and diligent men would exercise under similar circumstances; but in determining the amount of care they should exercise, the restrictions of the statute and the usages of the business should be taken into account.
    7. -: -: Different Degrees of Care: Salary. The fact that some directors serve without compensation and others ’aró paid for their assumed duties is to be taken into consideration in determining whether they have exercised a proper care and 'watchfulness over the company’s finances. A higher degree of vigilance is required of the president of the company who is its treasurer and manager and undertakes the oversight of its business and its finances • and receives an adequate salary, to discover the monthly embezzlements of its bookkeeper through a series of years, than is imposed upon ah uncompensated director whose duties with respect to the finances arise solely from the fact that he is a director.
    8. -: -: -: Other Considerations: Neglect of Duty: Laches. Likewise the confidence that all the directors had in the bookkeeper, the fact that no suspicion was directed against him at any time during the many years he was embezzling its moneys, the continued great prosperity of the company, and the fact that it was not customary to have the books of a concern of its size examined by public accountants, are all matters to be considered in explanation of the failure of a director, who was a mere superintendent of the manufacturing plant and had no knowledge of books or accounting, to examine the books and discover the losses; ana the further fact that he knew that the president, who was also treasurer and business manager, had himself kept the books for three years, had then secured the bookkeeper whom he had known from boyhood, for fifteen years was in the office where the books were kept, had been assigned and paid to perform the special duty of caring for the finances of the company and made the custodian of its funds, and had presented an annual statement to the directors, should likewise be considered in determining whether said superintendent, as a director, exercised the care that an ordinary prudent and diligent man would have exercised under the circumstances; and when all these facts are considered, it is held that he did, and that he did not neglect any duty which would have brought him knowledge of the bookkeeper’s peculations.

      9. -: Treasurer: Neglect of Duty: Liability for Bookkeeper’s Peculations. The treasurer of a corporation, who was also its president and the manager of its finances, who signed checks on the company’s account, with blanks for the amounts unfilled and never compared the returned checks with the check-hook stubs, and did not discover or attempt to discover that the aggregate of the returned checks exceeded the amount of the approved accounts, though the total did exceed that amount each month for years — a practice known only to himself and the bookkeeper, who filled in the amounts in the blank checks — was guilty of neglect of duty, and is liable to the company for the amount of the resultant losses.
    Appeal from St. Louis _ City Circuit Court. — Hon. Glendy B. Arnoldy Judge.
    Aeeirmed,

      JourdanK Bassi'eur & Pierce for appellant.
    (1) This suit, being one in equity, is practically triable de novo on appeal. That the law and facts are alike subject to review on appeal in equity is settled law of Missouri. Barrett v. Davis, 104 Mo. 549.; Lins v. Lenhardt, 127 Mo. 271; Robertson v. Shepherd, 165 Mó. 360. (2) In an equitable proceeding, such as this, the court has no power to enter a money judgment against a defendant. State ex rel. v. Foster, 225 Mo. 171. (3) Plaintiffs should be denied relief because they have been guilty of laches and for a long period of time have acquiesced in the conduct of Louis T. Maguire, which they now claim was wrongful and negligent. 3 Cook on Corporations, p. 2602, secs. 728, 729; 10 Cycl. on Corporations, p. 971; Loomis v. Mo. Pac. Ry. Co., 165 Mo. 469; 3 Clark & Marshall on Corporations, p. 2286, sec. 755-F; Klein v. Brewing Assn., 231 111. 594; Burt v. British Life Assn., 45 Eng. Rep. 62, 4 DeGf. & J. 158. (4) Under the law the duty of controlling and managing the property and business of a corporation rests on its. directors collectively and not upon any particular officer. Sec. 3347, R. S. 1909; Sec. 1320, R. S. 1899; Sec. 2772, R. S. 1889. It therefore avails plaintiffs nothing to say that they did not have actual knowledge that Louis T. Maguire was not auditing or checking up the accounts of the bookkeeper. Hax v. Davis Mill Co., 39 Mo. App. 458; 3 Clark & Marshall on Corporations, sec. 752; 10 Cycl. on Corporations, p. 832, sec. 8. (5) The trial court erred in its rulings on questions of evidence, (a) To permit the plaintiff to state that the bookeeper worked under the sole supervision of defendant was erroneously allowing him to state his own conclusion. G-utridge v. Mo. Pac. Ry. Co., 94 Mo. 472; Boettger v. Scherpe & I£oken Co., 136 Mo. 531, 536. (b) . In view of plaintiff’s efforts to have Louis T. Maguire removed as a director and officer of the company, it was error to prevent an inquiry by defendants as to who would, in case of hi's removal, make a suitable president for the company in his place, (c) And it was also error to prevent an inquiry as to the qualifications of plaintiffs to conduct the business of the company. (d) The .court also erred in' permitting Witness Mare, over defendants’ objection and exception, to give his own experience as to what other corporations did with reference to auditing their books, rather than show what the custom in that regard was. (6) In determining whether defendant was negligent the matter must be viewed in the light of all the circumstances of this particular case as they existed before the shortage was discovered and not in the light of subsequent events, and when so viewed it will appear that he has not been guilty of negligence. Bailey v. Babcock, 241 Fed. 514; In re Spering’s Appeal, 71 Pa. St. 11, 10 Am. Rep. 684; Fletcher’s Cyclopedia on Corporations, sec. 2443, p. 3694. . . ’
    Phillips W. Moss for respondents.
    (1) There never has been any want of power in a Court of Chancery to render a money judgment on an accounting. Holland v. Anderson, 38, Mo. 55; Potter v.. Whitten, 161 Mo. App. 129; Powell v. Powell, 217 Mo. 585; G-ill v. Eli-Morris Safe Co., 156 S. W. 811. (2) _ Where a court of equity has acquired jurisdiction .of a cause for one purpose, it will proceed to do complete justice between the parties, and determine all matters in issue, even if this involves adjudicating matters of law. Waddle v. Frazier, 254 Mo. 403; Hogan v. Bank, 182 Mo. 345. (3) This suit was properly brought and the petition states a cause of action. Slattery v. Transportation-Co., 91 Mo. 217; Pomeroy on Equity Jurisprudence, sec. 1095; 3 Cook on Corporations (7 Ed.), sec. 701, p. 2367. (4) The question of what is actionable negligence on the part of an officer and "director of a corporation depends upon the facts and circumstances of each particular case. State v. Rottmann, 183 Mo. 552; Trustees v. Bosseiux, 3 Fed,, 817; 10 Cycl. on Corporations, page 971; 3 Clark & Marshall on Corporations, sec; 755-F. (5) An officer of' a corporation is personally liable for losses to a corporation occurring through his gross negligence. Marshall v. Bank, 85 Ya. 676; McEweh v. Kelly, 140 Gra. 720; Ham' v. Cary, 82 N. Y. 65; Rubber Co. v. Benedict, 164 N. Y. App.. Div. 332, 338; Camden v. Virginia Safe Deposit & Trust Corp., 78 S. E. 596, 598; Fidelity & Deposit Co. v. Wiseman, 124 S. W. 621; 2 Thompson on Corporations, sec. 1268; Morawetz on Private Corporations, sec. 552; Kelly v. Famey, 145 111. App. 80.
   BLAIR, J.

This is a' suit by minority stockholders of the Oriel Class Company to recover from Louis T. Maguire the amount of certain sums embezzled. from the company by a bookkeeper. It is allaged the losses resulted from the negligence of Maguire, who was for many years president, manager and treasurer of the company. Judgment went in favor of the company for such sums as had been taken within five years prior to the bringing of the suit. Since this appeal was taken Louis T. Maguire has died and the cause has been revived in the' name of his executors.

Jean B. Boulicault learned the business of glass manufacturing in , his youth, in his native land. He came to America from Prance when he was • about twenty-two years old. His brother, Leon C., was a blacksmith and came to America about 1884. In 1889' Jean B. determined to establish in St. Louis a plant for the manufacture of bent glass. Search for a location brought him into contact with William A. Maguire, who suggested a partnership in the'glass business. Eventually this suggestion was accepted, and William A. Maguire, Louis T. Maguire and J ean B. Boulicault began manufacturing glass. Each owned a one-third interest. The Maguires furnished the capital and Boulicault the technical knowledge and experience. Louis T, Maguire looked after the business and' finances of the partnership, and Boulicault took charge of the work of manufacturing. In 1891 Leon C. Boulicault began working in the plant with his brother. The business prospered from the first. Until 1892 Louis T. Maguire kept the books of the partnership. In that year a corporation was formed with a capital stock of $20,000, divided into 200 shares. Of these Louis T. Maguire, William Maguire and Jean B. Boulicault took 60 shares each and Leon C. Boulicault 20 shares. Louis T. Maguire then procured a bookkeeper, whom he had known from youth-and with whom he had worked for the Haydock Carriage Company for some years, to keep books for the new corporation. Louis T. Maguire, William A. Maguire and Jean B. Boulicault were elected directors: Appellant was secretary, treasurer and manager. William A. Maguire was president and Jean B. Boulicault was vice-president and superintendent of the manufacturing plant. In 1895 William A. Maguire sold 41 shares of stock to Louis T. Maguire and 19 shares to Chas. J. Maguire. Thenceforward the directors have been Louis T. Maguire, Chas. J. Maguire and Jean B. Boulicault; Louis T. Maguire has been president, treasurer and manager; Charles J. Maguire has been secretary, and Jean B. Boulicault has been vice-president and superintendent of the actual work of manufacturing. Leon C. Boulicault has assisted his brother in the plant. When the partnership was formed it was agreed that Louis T. Maguire should “handle the soliciting and sales end and the financial end of this business,” and Jean B. Boulicault was to superintend the manufacture of glass. This division of duties and responsibilities continued until this suit was brought. The business office of the company was kept down town and at a considerable distance from the plant. There Louis T. Maguire had his headquarters, and there the books of the company were kept. In 1908 Louis T. Maguire lost the use of his lower limbs, and thereafter he seldom visited the office or the plant, but retained his official position and transacted' the business of the company mainly from his residence. He kept in touch with the office by occasionaTHrips thereto and by telephone and through his son Francis, then employed by the company. Most of the company’s business was transacted by mail. As .treasurer of the company Louis-T. Maguire drew the checks on the company’s bank account. In March, 1915, he “looked over the check book” and found some discrepancies. He called for the cash book and found others. He then asked the bookkeeper for a trial balance. When this was furnished Maguire pointed out the discrepancies he had found. The bookkeeper said it must be a mistake. Maguire told him that “it occurred pretty often” to be a mistake, and said he would get an accountant to go over he books. That night the bookkeeper committed suicide.

The man’s reputation had been good. His habits were apparently economical, and no one, in or out of the company, had felt any suspicion of him, so far as the record shows. An accountant was employed and the books and affairs of the company were examined. It was discovered that the bookkeeper commenced in 1892 to abstract the company’s funds. From that time forward until his death every month showed an embezzle^ ment of some amount. The total shortage for the twenty-three years was $87,345.69. The whole of this sura was taken from the bank account of the company. The bookkeeper was not authorized- to draw checks on this account, and drew none. Neither did he forge Maguire’s name. His opportunities came from the custom of Maguire, the treasurer, to draw and sign checks, usually payable to the bookkeeper, in which the amounts to be withdrawn were left in blank. No reports of the amounts filled in by the bookkeeper were required by Maguire. The pass book was infrequently balanced by the bank. It was allowed by Maguire to run from two to six months. At no time did Maguire compare the canceled checks and their aggregate with the check book stubs and their aggregate, nor did he ever compare any of them with the cash book of the company. He seems to have kept no account or record of either the bills or total of the bills he approved for payment. An examination of. the pass books, check stubs and such checks as were available disclosed the method employed by the bookkeeper to get at the company’s money in bank’. Comparison of the aggregate amount shown by the check stubs for illustrative periods with the aggregate of checks returned by the bank for the same periods, disclosed that the latter exceeded the former by the sums embezzled during that time. The pay roll checks and checks to cash were all missing. The checks covering other items of disbursement correctly corresponded with the amounts of such items as shown by the books of the company. Pay-roll checks were drawn frequently, probably each week. A verification of the pay-roll books for the year 1905 and thereafter until the exposure came, discloses that the amounts shown by the check stubs and cash book to have been disbursed on account of pay rolls, corresponded exactly with the amounts properly due for pay-roll disbursements as shown by the pay-roll books. These facts compel the conclusion the accountants reached that the bookkeeper obtained the money from the company’s bank account by filling in the blanks left for amounts in the pay-roll checks and checks “to cash” with sums in excess of the correct amounts of pay roll and cash disbursements and, to the same extent,. in excess of the sums written in the check stubs. This excess, thus withdrawn from the bank account, was the amount retained and embezzled by the bookkeeper.

•So far as this record and the contentions of the parties go, the books of the company show correctly every item of receipts and disbursements. To keep his books in apparent correspondence with the constantly reduced bank balance, two different \ plans were used. From June, 1892, until July, 1893, the disbursement side of the cash book was made, by forced footings, to show amounts in excess of actual,expenditures. From July, 1893, until the exposure occurred, the bookkeeper followed the plan of decreasing the amount of the additions in the cash receipt side of the cash book. The items of receipts were correctly entered, but an amount equal to the sum taken would be dropped from the footing. To illustrate, in February, 1912, the total brought forward to page 20 on February 15, was $69,0G.95. Thirty-eight items of receipts appear on this page. These aggregate $415.34. The footing appears as $6997.29. The correct footing would have been $7322.29, which is a discrepancy of $325.- In the cash book for 1914 the amount brought forward on September 24th, to • page 390 is $9615.83. Thirty-one items of receipts appear on this page and the footing appears as $9448.54* which is $167.28 less than the amount at the top of the column. The total receipts shown on this page aggregate $532.72. The forced footing was, therefore, $700 less than the correct footing. There were numerous instances of this kind, according to the testimony of an accountant. These false entries in the cash book required corresponding reductions in debits on the ledger. This was accomplished by increasing the debit side of the sales account, called by the witnesses the “bending account.” In this account appeared the gross sales on the credit side and the allowances to customers for reductions, offsets, etc., on the debit side. The account for 1914 illustrates this method. All claims, etc., debitable for 1914 appeared on three pages and consisted of numerous small items. The items on the first page (134)* aggregate $201.04. These were correctly footed on page 134, but the amount carried forward to page 135 was $6201.04. The debit side of the bending account was thus forced $6000, and this sum corresponds with the shortage for the entire year. Pages 135 and 136 show no other discrepancies. The total allowances debitable for the year were $913.21. The amount shown in the final footing was $6913.21. This illustrates the method habitually pursued in the ledger account.

The books of the company were never examined by an accountant until after the bookkeeper’s death in March, 1915. Jean B. Boulicault testified he frequently requested that this be done, but that Louis T. Maguire would not consent to it. Maguire said, in substance, that it was expensive and unnecessary; asked Boulicault' if he was not satisfied with the money he was getting. Boulicault also testified Maguire, in 1899', threatened to sell his stock to some big company which would “squeeze” out Boulicault if he continued to insist upon an examination. Leon C. Boulicault testified he asked Maguire to have the books examined and was told that he, Maguire, would look after that. Maguire denies all this. On one occasion Charles J. Maguire, in a director’s meeting, moved that an accountant be employed. There was no formal second to the motion. Jean B. Boulicault said it “ought to be done.” Louis T. Maguire did not put the motion. Louis T. Maguire admitted he kept the books of the partnership from its formation in 1889 until the organization of the Corporation in 1892, but testified he knew little or nothing about books and couldn’t understand them; said this was especially true of the ledger. It is reasonably clear neither of respondents had any knowledge of bookkeeping. The defaulting bookkeeper was on friendly terms with all concerned and no suspicion of his honesty was felt by any of them. Annually a statement of the company’s financial condition was submitted to the board of directors. .The company was properous, and until 1913 or 1914 its net earnings were such that the company paid liberal dividends, sometimes fifty per cent on the stock. This, in spite of the average annual loss of $4000 through the embezzlements referred to.

It does not appear that the correctness of these statements was ever questioned. There was evidence pro and con on the question whether corporations like the one here involved customarily had their books examined by accountants.

judgment

I. Appellant contends that “in an equitable proceeding' such as this, the court had no power to enter a money judgment” against Louis T. Maguire. In support of this the case of State ex rel v. Foster, 225 Mo. 171, is cited. In that case the trial court had attempted to dissolve a corporation, appoint a receiver and render judgment in the receiver’s favor against individual defendants at one and the same time. The fact that the judgment was in favor of a receiver not then in existence, as such, and was not in favor of the corporation, was the ground of decision on the point to which the case is cited here. In the instant case the judgment is rendered in favor of the corporation. This accords with the holding in the case cited and with Slattery v. Transportation Co., 91 Mo. 217.

stoike^out.

II. (1) Jean B. Boulicault was asked under whose supervision the bookkeeper worked. He replied: “Under the sole supervision of Louis T. Maguire.” A motion to strike out this answer was. made. The court. overruled the motion, and said: “You can examine him on that.” This is assigned for error. The answer was responsive to the question. Appellant awaited the answer and then, after it proved unfavorable, he made his objection. He cannot now be heard to assert error on this ruling. [State v. Sykes, 191 Mo. l. c. 79, 80; State v. Forsha, 190 Mo. l. c. 326, 327, and cases cited.]

of5others.07

(2) Complaint is made that the trial court did not permit an examination of Boulicault concerning the capacity of himself and his brother to act as president of the corporation in case the court granted the prayer to remove Louis T. Maguire from office and prohibit him from holding any corporate office thereafter. The court said he could not select officers for the corporation; that if Maguire should be removed, the directors would have to do that. This seems to answer the point made. Further, no offer to show incompetencv of any other director or stockholder was made.

Custom

(3) On the question whether there was a custom among business corporations to have their books examined once a year, appellant objected in the trial court and complains here that the witness was permitted to ^ve ££individnal experience” instead of being required to confine his testimony to the custom. The record shows a remark of the court which it seems was intended to elicit the “practice” of the witness. The record further shows, however, that the witness did not testify as to his “practice” or “individual experience,” but directed his answer in terms to existing custom, ás appellant contends he should have done. The record, therefore, shows no basis for the contention.

Laches

III. It is insisted that respondents are barred by laches; i. e. that respondents are without equity. The cases cited are nearly all cases of acquiescence or rati^ca^on- Estoppel is an element of all these; and knowledge is an element of estoppel. (1) Leon C. Boulicault was not a director, but, merely a stockholder. He was not under any obligation to examine the company’s books, and had the right, in the absence of special facts, to rely upon the directors and officers properly to conduct the business. The weight of the evidence in the record is that it was not customary, in corporations like this glass company, to have periodical examinations made of the books. The fact that Leon C. Boulicault. knew such examinations were not made did not raise any duty upon his part, therefor. He never acted as a director or offered to act as one, and the suggestion that he was a de facto director has no foundation upon which to rest.

(2). Jean B. Boulicault was a director. To this extent his position was different from that of Leon C. Boulicault. If he is guilty of laches, it is because of some neglect of duty the performance of which would have given him knowledge of what was occurring. His position differs also from that of Louis T. Maguire. Maguire was not only a director but also president, manager- and treasurer and was in charge-of the finances and business of the company and owned a majority of its stock.

Directorf

IV. In a sense directors of a corporation “are trustees and agents of the corporation and stockholders. In a general way they are governed by the same rules as are applied to trustees and agents” (Bent v. Priest, 86 Mo. l. c. 482), and for a failure to discharge their obligations as. such they become liable for corporate losses resulting therefrom., [Thompson v. Greeley, 107 Mo. l. c. 590.] The directors of a business corporation are vested with the control of ‘its business (Sec. 3347, R. S. 1909), and this power entails an obligation to exercise, ordinary care to the end that the assets of the corporation shall not be lost or dissipated. This duty extends to all directors, as. such, and renders them liable for losses resulting from negligence as well as from actual misfeasance. The care required of diract©£S_Lkis._tliaLwhich ordinarily prudent and diligent men would, exercise under similar circumstances, and in determining that, the restrictions of the statute and the usages of business should be taken into account.” Quoted in Stone v. Rottman, 183 Mo. l. c. 573. While that case involved bank directors, yet the weight of authority and reason is that it is generally applicable, due consideration being given i,n each case to the character of the corporation. To some extent the rule depends upon the fact that directors, as such, usually serve without' compensation other than that they receive by sharing with all stockholders in the prosperity of the corporation. This rule defines the measure of the duty of Louis T. Maguire, Charles J. Maguire and Jean B. Boulicault in their several characters as directors only. There are other matters to be considered. Charles J. Maguire received 110 compensation of any kind and held no office having actual duties and responsibilities. Neither Louis T. Maguire nor Jean B. Boulicault received any compensation as a director. Boulicault’s salary was paid him for services as superintendent of the manufacturing plant. Louis T. Maguire was made president, manager of the business and treasurer of the corporation, and undertook the oversight of the business as a whole and its finances. For this he was paid an adequate salary. His course is, therefore not to be judged by the same rule applicable to an uncompensated director whose duties with respect to the finances and oversight of the business of the company arose solely from the fact that he was a director. “A higher degree of vigilance” was required of him because of the very fact that he was chosen and paid for the purpose of having him devote his entire time to the management of the business and finances of the company. [Jones v. Johnson, 86 Ky. l. c. 543; Bank v. Morton, 146 Ky. l. c. 294, 295.] Many decisions take into consideration the lack of compensation as an element in determining what constitutes the requisite care in particular circumstances. In Sec. 2444, 4 Fletcher’s Cyclopedia of the Law of Corporations, is quoted with approval the following:

“In some instances the salary paid them (directors), taken into consideration with other circumstances, shows that the corporation was entitled to all or a greater portion of their time and attention, while in others it is clear that they have not undertaken, nor been understood as undertaking, to give the affairs of the corporation any more than occasional attention, consisting chiefly of attendance at meetings of the board of directors, and investigating and voting upon such matters as are there presented for their action. In the latter cases, directors may doubtless, without rendering themselves liable, be. ignorant of many matters affecting the corporate interests of which directors of the other class could remain in ignorance only by a failure to discharge with ordinary fidelity and care the duties of their office.”

What care “ordinarily prudent and diligent men” would have exercised under the circumstances, in the capacity of directors only, depends upon (1) what the circumstances were, and (2) what the course of ordinarily careful and prudent men is under such circumstances. Both these raise questions of fact to be determined by the trier of the facts. The confidence all concerned had in the bookkeeper, the fact that no suspicion was directed toward him at any time, and the continued great prosperity of the company — all are to be considered in explanation of Jean B. Boulicault’s failure to examine the books of the company. Further, it was doubtless known to all that he had no knowledge of books and accounting, and it was certainly known to all that Maguire had kept the books of the partnership for three years, that he secured the bookkeeper whom he had known from boyhood; that for fifteen years he was constantly in the office where the books were kept; that he presented the annual statement to the directors; and that he was assigned to perform and paid to perform the especial duty of caring for the‘finances of the company and made the custodian of its funds. He constituted a sort of committee to look after that part of the business. In' such circumstances it cannot be said Jean B. Boulicault was under the same duty as that imposed' upon Louis T. Maguire. As already stated, the weight of the evidence is that it was not customary to have the corporate books in a small concern like the Oriel Glass Company examined by accountants. In such circumstances it cannot be held that Jean B. Boulicault neglected any duty as director which would have brought him knowledge of the bookkeeper’s peeulations.

Louis T. Maguire’s position as president and manager in charge of the finances and business of the company and custodian of its funds imposed additional duties upon him. In Johnson v. Wagon Co., 118 Wis. l. c. 449, the court considered the case of a manager in charge of a corporation whose secretary had for seven years overdrawn his salary account. In that connection the court said:

“We must deem it sufficient to say that- the finding of the trial court that plaintiff was guilty of negligence in failing to discover and thus in permitting the secretary to withdraw funds of the company in excess of his salary, through a period of some seven years — the secretary being pecuniarily irresponsible, though of excellent reputation and apparently economical habits — is supported by the evidence. We should not sustain the view that one occupying the position of general manager must at all times be cognizant with the condition of every account upon the books, even though they were kept by immediate subordinates of his — less so where kept under the control of an officer having such measure of independence as the secretary had in this case; but one who is charged with the care of a business of this magnitude certainly owes, as a mere measure of ordinary diligence, the duty of some supervision, to see that others having access to its ■ funds are not misappropriating them. Just what acts may constitute fulfillment or breach of that duty, it is unnecessary now to decide. We think it within the judgment of a trial court, in drawing inferences of fact, to hold that the ordinarily diligent man, in plaintiff’s position, would have discovered the depletion of its funds long before the plaintiff did. It may reasonably be supposed, too, that, if that discovery had been made while the overdraft was comparatively trifling in amount, reimbursement by the secretary out of' his salary might have been possible. When the discovery was made, the amount of the deficiency rendered such result improbable. Hence we cannot say that the court was wrong in concluding that the whole amount of Lund’s overdraft at the time of- its discovery, in 1897, might properly he held to be damag’e resulting from plaintiff’s neglect to discover it in proper time, and take effective steps to prevent its increase and secure its repayment. ’ ’

The same doctrine is approved and, also, applied, in some degree, to the' president of a corporation in Fletcher ’s Cyclopedia of the Law of Corporations, sec. 2406.

Louis T. Maguire admitted he signed checks on the company’s account, payable to the bookkeeper, with the blanks for amounts left unfilled; that he never compared the checks returned with the check-book stubs; and never discovered that the total of the checks returned exceeded the aggregate of the approved accounts, though such total did exceed that amount each month for years. He never gave any attention to these things, though he, himself, had issued the checks in blank. So far as the record shows only he and the bookkeeper knew of this practice in issuing checks. ■ We hold that this constituted such negligence as to justify the judgment rendered in the trial court and require its affirmance.

All concur except Graves, J., who dissents.