WESTERN 'RANCHES Y. CUSTER COUNT!'.

677

pole aD the parties who are Interested, or a number of them, come enter Into a contract that they will raIse .. fund to ,carryon that lltigatIon, that they will unIte for the purpose of employing counsel, and combine to earry It on In the name of the party to the recoo-d; It seems to me that the persons who, under' such a contract as that, actually contribute money for the purpose of carrying on a suit, are authorized to go Into that court and use the name of the party to the record In making such motions and takIng such steps a8 are necessary foo- the protection of their particular IAterest In It."

The same case also furnishes an answer to the second proposition discussed by counsel: If the judgment in TheIler against Ross is final, it would, upon the facts stated in the bill, be conclusive against respondent; if the judgment is not final, the trial of this case might be continued until it became final. . In Robbins v. Chicago City, supra, the court said:
"Conclusive effect of judgments respecting the same cause of action and between the same parties rests upon the just and expedient axiom that It II for the Interest of the community that a limit should be opposed to the con· tlntl'llnce of litigation, and that tbe same cause of action should not be twice to a tinal determination."

Demurrer overruled.

WESTERN RANCHES, LimIted,' v. CUSTER COUNTY, MONT. (Circuit Court, D. Montana. June 28, 1898.)

L

PLEADING-ISSUES-ADMISSIONS IN PLEADINGS.

In an action against a county to recover a tax alleged to have beell Ulegally exacted, plaintiff may rely on statements made In defendant'. answer as to the manner of' making the assessment, as admissions, tor the purposes at a motion for judgment on the pleadings.

I.

TAXATION-ADDITIONAL ASSESSMENT BY BOARD 011' EltUALIZATION-NECESSITY 011' NOTICE.

Pol. Code Mont. § 8789 (Sand. Ed. p. 824), authorizes the board ot count ty commissioners to direct the assessor to make new assessments or new 11sts of property omitted, but requires the clerk to notify all persons Interested, at least 10 days before action Is taken, of the day fixed for such action. Held, that such notice was designed to give the property owner an opportunity to appear and be heard, and Is jurisdictional, and that a new assessment so made, of whIch the property owner was not notified until afterwards, was Invalid.

I.

SAME-RECOVERY OF TAXEB PAID-NECESSITY OF PRESENTING CLAIM.

Pol. Code Mont. §§ 4024-4026, provide for an action to recover taxes paid under protest, "which shall supersede the remedy by injunction and all other remedies * * * to prevent the collection of taxes," ex· cept In unusual cases, where deemed by the court Inadequate. Is also provided that a judgment In such action shall be presented to tne board. allowed, and that the warrant Issued thereon shall constitute a preferred claim against the county. Held, that a special remedy was therepy provided, and the presentation of the claIm to the board was not a condition precedent to the bringing of suit, not being made so by the statute.

This is an action to recover a tax paid under protest, heard on eros. motions for judgment on the pleadings. Clayberg, Corbett & Gunn and C. S. Middleton, for plaintiiL T. J. Porter and C. B. Nolan, for defendant.
89F.-87

KliOWLES, District -Judge., .:,The plaintiff is a foreign, the -ot ,Great Britain and Irelllnd. "This' $uit conntyof 'Custer, Mont" for its object tAe Bri,m'of,J7,374.35, money,it alleges, it unlawfully paid under protest to the treasurer of, said county as taxes,levied upon certain horSes and rottle., Plaintiff sets forth that it did not have in said county the'horses or cattle named in the supplemental asseSSment made by the, assessor of said county on the 7th day of August, 1895. The allegatioIiifof the 'complaint are that 'I\: firm known as Clay & Forrest werathe agents of plaintiff; that through their agent, Jaffray, all of the property of, plaintiff. in Clister' county was listed and assessed; that after the assessor of said county, one John I. Zook, had for the year 1895 completed and verified his assessment roll for said county, and deposited the !Same with one 8werdfiger, the county clerk for said county,one John McAusland, as deputy assessor of said county, upOn his own motion, and without notice to plaintiff or to its Clay & Forrest, to E. G. Jaffray, their representative, made out said supplementary assessment list upon information therein., Ten thousand head of cattle and three hundred head of horses were assessed to plaintiff. The horses were valued at $6,000, and the said cattle at $240,000. It is also alleged that the county commissioners of said county met as a board of equalization on the third Monday in July, 1895, and continued in session up to and including the lOth day of August, 1895, and that the county clerk of said county delivered to said board of equalization the assessment roll of said county for said year, in the manner and at the time provided by law; that the said board of equalization took no steps, as plaintifl' verily believes, for the the assessment upon plaintiff's property, or for the purpose of purpose of making any further assessment or levy of taxes against or upon plaintiff's property. The defendant made its amended answer to this complaint. In this answer defendant denies the allegations contained in subdivisions 14 and 15 of plaintiff's complaint. In the fifteenth subdivision were the allegations which set forth, in effect, that the said John McAusland, upon his own motion, made this supplemental assessment, and that the said board of equalization did not direct the making of said Bupplementallist. The answer then proceeds:

dt'gatilz00

"And, In reference thereto, alleges that the board of commissioners of Custer county met as a board of equallzatlon, as required by the statutes of the state of Montana, on the 15th dll,y of July, 1895, and remained'in session continuously thereatterup to and Including a part of the 24th day of JUly, 1895, at which time the saJ<t" board adjourned to meet as a board of equallzation on the 6th day of August, 1895. On the 22d day of July, 1895, the said board of equalization directed the Bald John McAusland, deputy assessor of said county of Custer, to assess the plalnWt for ten thousand head of beef cattle and for three hundred head of saddle horses, for the reason that the s/!.Id property, and the whole thereof, had escaped asseS8ment for the year 1895; and that, in pursuance of said order, and not otherwise, the said deputy assessor, on the 7th day of August, 1895, assessed this said plalntltr for ten thousand head of beef cattle, of the value of two hundred and forty thousand dollars, aild three hundred head of saddle horses, of the value of six thousand dollars. That the said John McAusland, deputy assessor, as aforesaid, immediately after making the assessment list of the plalntitr as hereinbefore mailed a copy thereof to the last knowll

WESTERN RANCHES V. CUSTER COUNTY"

post-office address 01' the said Clay & Forrest, to wit, 6'63 Rookery Bullding, Chicago, Iliinois, with postage thereon prepaid. Admits that no other notice of the assessment of plaintifl as a1'oresald was given to plaintUf, or tao the sald Clay & Forrest, other than the mailing ot the copy of the assess· ment list as aforesaid."

Plaintiff sets forth in its complaint:

"That on the - - day of June, 1800, plainUl'l", through Its agents, made application to the board of county commissioners of said county of Custer for an abatement of said alleged tax upon petition and affidavits duly verified; that said board of county commissioners absolutely refused to abate said alleged tax, or to grant plaintiff any relief in that behal1', but, on the contrary, directed the treasurer of said county to immediately proceed with the collection of said alleged tax; that the said treasurer of said county thereafter threatened to proceed with the collection of said alleged tax by seizure and sale of such property belonging to said plaintiff as might be found within the said county of Custer; that a large expense would be attendant upon such proceedings, and plaintiff's property would be greatly damaged and injured thereby; that, for the purpose of preventing the seizure and sale of the plaintiff's property upon such threatened collection of said alleged tax by said treasurer of said county, plaintiff involuntarily, and under written protest, paid the said alleged tax, claiming the same to be invalld and lllegai, and notifying the said treasurer, at the time of said payment and protest. that plaintiff would institute suit against said county to recover back the amount so paid, with interest and costs."

The defendant, in its answer, admits all these last·named allegations of the complaint save the allegation that the said board of county commissioners directed the treasurer of said county to proceed with the collection of said tax. Both parties made a motion for a judgment upon the pleadings,the plaintiff upon the ground that the defendant shows by its answer that the tax was illegal, and admits that the same was paid under a protest, claiming its illegality. The defendant asks judgment upon the ground that the complaint does not state a cause of action, in this; that it does not appear that the plaintiff ever presented his claim to the board of county commissioners of Custer county for allowance, as required, it is claimed, by the statute law of Montana, before an action could be maintained upon the same. It will be seen that, while there is a general denial of the facts that the said assessor listed said property on his own motion, there is the statement that the listing of said property was done upon the order of the board of connty commissioners of Custer county. It is not a question that seems to be well settled as to whether the plaintiff can rely upon these allegations in defendant's answer. The general rule is that each party is bound by the admissions made in his pleading. If the defendant makes an admission in his answer, the general rule is that he is bound by the same. People v. Stockton & C. R. Co., 49 Cal. 414; IRe v. Evans, 8 Cal. 424. I think, under the pleadings in this case, the plaintiff may rely upon these admissions. The defendant cannot object to the plaintiff's adoption of the same as true. Section 3789 of the Political Code of Montana (Sand. Ed. p. 324) is as follows:
"During the session of the board of county commissioners it may direct the assessor to assess any taxable property that has escaped assessment, or to add to the amount, number, or quality of property when a false or incom· plete list has been rendered, and to make and enter new assessments (at the same time canceling previous entries) when any assessment by hill) ts

580

89 FJllDI!lRAL ''REPORTER.

deemed by the board so jncomplete as to render doubtful thecollectlon of the taJl:; but the clerk must notify all persons interested by letter deposited in the post office, postpaid and addressed to the person interested at least ten before action is of the day fixed when the matter will be investigated."

By the statements in the answer it wiilbe seen that no notice was given to the plaintiff of the listing of its property under the order provided for in this section. The notice was given to Clay & Forrest after the listing of the property. The sending of the supplemental list to Clay &:Forrest shows that it was known that they were the agents of plaintiff. the fflilure to give the notice before the listing of the property invalidate the tax? I think it did. The notice required by this section was for the protection of the taxpayer, and intended to give him a hearing before the listing 'of his, property in a supplem.ental list, and was jurisdictional. Without such notice the board of equalization had no right to order the assessor to make the supplemental list. Cooley, Tax'n(2d Ed.) 362-366; French v. Ellwards, 13 Wall. 506; Powder River Cattle Co. v. Board of Commissioners of Custer Co.; 45 Fed. 323; Dykes v. Mortgage Co. (Kan. App.) 43 Pac. 26R This tax was then exacted when it was an illegal tax; that is, a tax which could not be demanded under the laws of the state. The allegations of the complaint are that the plaintiff paid this tax under protest, claiming that it was illegal, and notifying the treasurer at the time that he would bring a suit to recover the same back from Custer county. This is admitted by the defendant in his answer. It does not appear that ever presented a bill to the board of county commissioners of·Custer county. for these taxes so paid, and of said board that it refund the same to plaintiff. Under these circumstances, can plaintiff maintain this action? Section of Political Code of Montana is as follows:
'''That in all CMes of levy of taxes, licences or other demands for public revenue, which is deemed unlaWful by the party whose property is thus taxed or from whom such tax or licence is demanded or enforced, such party may pay under protest such tax or licence, or any part thereof deemed unlawful, to the officers designated and authorized by law to collect the same; and thereupon the party so paying .01'. his legal representative may bring an action in any court of competent jurisdiction against the officer to whom said tax or licence was paid, or against t)le county or municipality on whose behalf the same was collected, to recover such tax or licence or pay any portion ·thereof under protest."

Section 4025 of said Code is as follows:
"In case it be determined In such action that said tax or licence or any portion thereof so paid under protest was unlawfully collected judgment for recovery ther,eof and lawful Interest thereon together with costs of actloD shall be entered In favor of the plaintiff; and llpon being presented with a duly authenticated copy of subh .judgment the proper officer or officers of the.county or mUJ;llcipality whose officers collected or received such tax, shall audit and allow such judgment and . cause a warrant to be drawn * * * for the amount recovered by' said judgment in favor of the legal holder thereof; which warrant shall be paid In preference to warrants of any other class drawn on such treasury."

Section 4026 provides:

"The remedy hereby provided shall· supersede the remedy of injunction and all other remedies which might be invoked to prevent the collection of

WESTERN RANCHES V. CUSTER COUI\TY.

581

taxeR or licences alleged to be Irregularly levied or demanded, except In unusual cases where the remedy hereby provided Is deemed by the court to be inadequate."

These sections provide a remedy for the collection of money paid for or on account of an illegal tax to the treaSUl'er or tax collector of any county or municipality of this state. It gives this remedy upon a state of facts that would not have warranted any legal remedy before the passage of this statute. Formerly an action could not be maintained for the recovery of taxes paid to a tax collector, although the tax was illegal, unless the payment was made under a duress of person or property. 1'lJe payment of an illegal tax under protest wail not sufficient to entitle a person to maintain an aetion to recover the money so paid. 18 Am. & Eng. Enc. I.aw, tit. "Payment," p. 220, and note. A payment made under protest does not imply any duress. Railroad Co. v. CommissioneI's, 98 U. S. 541. A protest is a notice that the party making the payment does not consider that the party demanding the same has the right to make the demand. Id 541, 544. There may also be added to this, perhaps, a notice that a party making the payment of a tax considers the sam'e illegal. The protest was sufficient, as alleged in this case, to give this notice. Before this statute was enacted, a party paying an illegal tax under protest had a remedy against the tax collector, county, or municipality for a recovery of the amount so paid if the same was paid under duress of person or property. This was in pursuance of a common-law right not g-iven by statute. 1'he claim against the county or municipality for the mOll('y so paid was a general one, and hence had to be presented to the board of county commissioners for allowance before an action could he maintained for the same. 'fhis was the condition of the law of :iJontana when the case of Powder River Cattle Co. v. Commissioners of CU>Jter Co., 9 Mont. 153, 2:; Pac. 383, occurred. The same condition of the law prevailed in Nebraska when the case of Railroad Co. v. Commissioners, 98 U. S. 541. arose. Here, under the statute under consideration, the right of action accrued when the proper protest was made. The wording of the statute indicates this. After a jndgment is obtained against the county, a duly-authenticated copy of the same must be presented to the board of commissioners, and then the said hoard must audit and allow tbe same, and a warrant is to be drawn therefor, which shall be paid in preference to warrants of any other dass. As a compensation for this duty on the part of thl" said hoard, it is providpd that the remedy above given shall super!"('dp the remedy by injnnction and all other remedies which might be invoked to wen'nt the collection of taxes, except in unusual cases, when the remedy rn'ovidpd is deemed by the court inadequate. 'i'his is a SIJeciul statute. aIH] is intended to give an exclusive remedy, except in unusual cases, wlJere tlJere is a dispute as to the legality of the lax between a taxpayer and a county or municipality. End. Interp. St. § 154. When a special and exclusive remedy is given by a statute, we look alone to it, and are required to follow it. A condition not lIamed in the statute is not required. For these reasons, I hold that there was no necessity for presenting this claim of plaintiff to the board of county commissioners of Custer

582

89 FEDERAL REPORTER.

for allowance before plaintiff could maintain this action. The tax being an illegal· one under the facts set forth in the answer, and paid under protest, the plaintiff was entitled to have the same reo funded to him. The complainant, under the statute cited above, stated a cause of action, and it was not necessary that it should be shown that there was any demand upon the county commissioners for a repayment of the same. The plaintiff's motion for a judgment is sustained, and it is ordered that plaintiff have and recover of de· fendant the sum of $7,374.35, and legal interest thereon from the - - "- day of - - - , and its costs of suit.

BARRY et al. v. LAW.1 (CIrcuit Court, District of Columbia.

1802.)

1.

EVIDENCE-ADj\IJSSIBIUTY OF UNSTAMPED WRITINGS.

An account rendered with an order by the debtor on a third person to pay It Is not admissible, when not written on stamped paper.

2.

8.

STATUTE OF FRAUDS-PROMISE TO PAY DEBT OF ANOTHER.

A conditional promise to pay the debt of another Is within the statute of frauds.

STATUTE OF FRAUDS-NOTE IN WRITING-SUFFICIENCY.

An unsigned entry in the promisor's books of account of a memorandum of a bill rendered to a third person by the promisee Is not a sufficient note in writing, under the statute of frauds, to support a promise to pay it.

4.

MONEY HAD AND HECEIVED-WHEN LIES.

Evidence that a debtor drew an order on another for the payment of an account, and that the drawee made a memorandum of it in his books, and promised to pay the creditor the account, if he (the drawee) owed the debtor so much, does not support a count for money had and received by the creditor a.gainst the drawee.

Assumpsit. First count, money had and received; second, a special promise to pay for planks and tImber sold by the plaintiffs to Bryan, in consideration that the plaintiffs would forbear to sue him; third, indebitatus assumpsit for planks, etc., sold to the defendant himself. The case in evidence was that Bryan had contracted with Mr. Law t.o build stables and furnish materials; that Bryan purchased of the plaintiffs planks, etc., to the amount of $135.97. Bryan, at the foot of the plaintiffs' account rendered, drew an order on Mr. Law, in these words:
"Sir: Please to pay to R. & G. Barry the above account, being lumber B. Bryan. used in building your stables, and charge your humble serv't. "To Tho. Law."

This order was not on stamped paper. The defendant on the 6th of December, 1800, made an entry in his books, as follows: "Stables on Sq. 693, Dr. To am't of Capt. Barry's bill, $135.97,"-and promised the plaintiffs that, if so much was due by him to Bryan, the bilI should be paid.
1 This case has been heretofore reported In 1 Cranch, C. C. 77, and Is now published in this series, so as to include therein all circuit and district court cases elsewhere reported whIch have been inadVErtently omitted from the Federal Cases.