114 S.W. 40 (Mo.App. 1909), McCormick v. Moore

Citation:114 S.W. 40, 134 Mo.App. 669
Opinion Judge:JOHNSON, J.
Party Name:F. P. McCORMICK, Appellant, v. PATRICK MOORE et al., Respondents
Attorney:Harry B. Walker and Ball & Ryland for appellant. Allen & Allen and James E. Trogdon for respondents.
Case Date:January 11, 1909
Court:Court of Appeals of Missouri
 
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114 S.W. 40 (Mo.App. 1909)

134 Mo.App. 669

F. P. McCORMICK, Appellant,

v.

PATRICK MOORE et al., Respondents

Court of Appeals of Missouri, Kansas City

January 11, 1909

June 29, 1908;

Appeal from Jackson Circuit Court.--Hon. John G. Park, Judge.

Judgment affirmed.

Harry B. Walker and Ball & Ryland for appellant.

(1) The evidence shows conclusively and without contradiction, that the board of public works did compute and apportion the assessment in the sewer district. Sheehan v. Owen, 82 Mo. 458; Cole v. Shrainka, 105 Mo. 311; Verdin v. St. Louis, 131 Mo. 135; Jaicks v. Merrill, 98 S.W. 753; Dickey v. Porter, 101 S.W. 586. (2) The plans and specifications did adequately and sufficiently describe and provide for the work to be done. Jaicks v. Merrill, supra; Dickey v. Porter, supra, 596, sec. 6; Const. Co. v. Coal Co., 103 S.W. 98. (3) The insertion in advance of the passage of the ordinance and letting of the contract of the amount of security to be given by the successful bidder, was not a condition precedent and the failure to so insert it did not render the taxbills void. Const. Co. v. Coal Co., supra, par. 5 (100).

Allen & Allen and James E. Trogdon for respondents.

(1) The finding of facts by the court, sitting as a jury, and the giving of a general verdict, are incontrovertible upon appeal, unless declarations of law showing on what theory the case was tried were asked and refused. Jordan v. Davis, 172 Mo. 609; Hamilton v. Boggess, 63 Mo. 252. (2) There were no specifications prepared or in existence at the time of the passage of ordinance number 20114, or at the date of its approval. Dickey v. Holmes, 109 Mo.App. 721; Barton v. Kansas City, 110 Mo.App. 40; Gilbreath v. Newton, 30 Mo.App. 392; St. Louis v. Clements, 52 Mo. 138; Keating v. Skiles, 72 Mo. 101, 102. (3) The taxbill is void for the reason that the specifications did not contain the amount of security to be given by the contractor as provided by the general ordinance of Kansas City, Missouri.

OPINION

[134 Mo.App. 671] JOHNSON, J.

Action to enforce the lien of a special taxbill issued by Kansas City in part payment of the cost of building certain district sewers. The validity of the proceedings leading to the issuance of the taxbill was attacked in the answer on a number of grounds, four of which were sustained by the trial court where, by consent of parties, the cause was tried to the court without the aid of a jury. Judgment for defendants was rendered and plaintiff appealed.

Proceedings for the improvement were initiated July 9, 1902, by the enactment by the common council of Kansas City of Ordinance No. 20114, entitled "An ordinance to construct

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sewer in sewer district No. 221." This was pursuant to section 10, article 9 of the city charter which provides, in part: "The city may, with the approval of

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the board of public works, from time to time, cause a district sewer or sewers to be constructed in any sewer district heretofore or hereafter established [134 Mo.App. 672] whenever the common council may deem such sewer necessary for sanitary or other purposes, and such sewer or sewers shall be of such dimensions, material and character as shall be prescribed by ordinance, and any district sewer heretofore or hereafter constructed may be changed, diminished, enlarged or extended, and shall have all the necessary laterals, inlets and other appurtenances which may be required. As soon as the work of constructing, changing, diminishing, enlarging or extending any district sewer shall have been completed under a contract let for the purpose, the board of public works shall compute the whole cost thereof, and apportion and charge the same as a special tax against the lots of land in the district, exclusive of the improvements, and in the proportion that their respective areas bear to the area of the whole district, exclusive of the streets, avenues, alleys and public highways, and shall, except as hereinafter provided, make out and certify in favor of the contractor or contractors to be paid, a special taxbill for the amount of the special tax against each lot in the district."

Competitive bidding was invited and, at the time designated, the contract was awarded to the Parker-Washington Company as the lowest and best bidder. Afterward the work was completed by the company in substantial compliance with the requirements of the contract, special taxbills were issued and the one in controversy sold and assigned to plaintiff.

One of the defenses sustained by the trial court thus is pleaded in the answer: "Defendants say that there were no specifications for the doing of the work for which the taxbill sued on was issued, nor had there been any prepared or were in existence at the time of the approval of the ordinance by the board of public works...

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