Byrne Real Estate Co. v. Welsh

• Citation: 258 S.W. 743,215 Mo.App. 652
• Parties: BYRNE REAL ESTATE COMPANY, Plaintiff, Respondent, v. J. E. WELSH, Kansas City, Missouri, and BEN JAUDON, Defendants; J. E. WELSH, Appellant.
• Decision Date: 11 February 1924
• Court: Court of Appeals of Kansas

258 S.W. 743

215 Mo.App. 652

BYRNE REAL ESTATE COMPANY, Plaintiff, Respondent, v. J. E. WELSH, Kansas City, Missouri, and BEN JAUDON, Defendants;

J. E. WELSH, Appellant.

Court of Appeals of Missouri, Kansas City

February 11, 1924

Appeal from Circuit Court of Jackson County.--Hon. Allen C Southern, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

Griffin & Orr for respondents.

Clarence S. Palmer for appellant.

OPINION

BLAND, J.--

This is a proceeding in equity to obtain the cancellation of certain tax bills issued to the appellant by Kansas City, Missouri, for paving Twenty-first Street from Wyandotte Street to Central Street in said city. The court found the issue in favor of defendants but sustained plaintiff's motions for a new trial and in arrest of judgment. Defendant Welsh has appealed.

The facts show that on August 12, 1919, the Board of Public Works adopted a resolution providing for the paving of the street in question, the work to conform to the plans and specifications to be thereafter adopted. On September 12 1919, the plans and specifications for said work were drawn up and adopted by the Board of Public Works. On September 16, 1919, a contract for the doing of the work was entered into between the city and the defendant Welsh and his sureties. On October 4, 1919, an ordinance of the city for the doing of the work was passed. On February 28, 1920, the work not having been begun, an ordinance was passed extending the time for the completion of the work to the first of July, 1920. On June 21, 1920, another ordinance was passed extending the time for the completion of the work to September 15, 1920, and on September 10, 1920, a third ordinance extending the time for the completion of the work to November 15, 1920, was passed. The work was completed on October 13, 1920, it having been started four days prior to that time.

The plans and specifications provided as follows:

"Time. Work shall be commenced and shall be completed to the satisfaction and acceptance of the Board of Public Works within One Hundred & Twenty (120) (....) working days after the date contract becomes binding. Working days to include all days, excepting only Sundays and legal holidays and such days as are excepted in the contract.

"Liquidated Damages. In case the Contractor shall fail to complete all the work herein contemplated, in accordance with the terms of these specifications, within One Hundred & Twenty (120) (....) working days as aforesaid, the Board of Public Works shall deduct from the aggregate amount due according to the consideration of the contract an amount equal to ten ($ 10) dollars per day for each and every working day after said One Hundred & Twenty (120) days that the work is not completed as aforesaid as liquidated damages."

The contract for the doing of the work provides as follows:

"Detention. No additional time to that stated in the specifications hereto attached for the beginning or completion of the work shall be allowed except for reasons that shall appear sufficient to the Common Council, in which case the additional time to be allowed shall be fixed by an Ordinance of the City, after being approved by the Board of Public Works."

The contract also provided that the plans and specifications were made a part of the contract. It further provided:

"The working days on this contract lost in consequence of injunction or court proceedings, bad weather, grading, curbing, trenching, or by other contractors, corporations or individuals, over whom the party of the first part has no control, or organized general strikes, or burning of any plant where the material of this contract is manufactured or made, shall not be held to be working days, and shall be added to the number of days specified in this contract within which work shall be completed."

It further provided--

"And the said parties of the second part hereby further agree with Kansas City that if the work embraced in this contract be neither begun nor completed within the period stated in the specifications hereto attached they will pay to Kansas City the sum of Three Hundred and Sixty ($ 360) dollars as liquidated damages for such breach of this contract."

The ordinance providing for the doing of the work does not mention any time for the beginning and completion of it but refers to the contract and specifications and provides that the work should be done according to them and they are made a part of the ordinance by reference.

It is insisted by plaintiff that the tax bills are void for the reason that the work was not completed by the time fixed by the ordinance, that the first extension ordinance passed on February 28, 1920, was too late, being passed one hundred and twenty-one (121) working days after the time for the commencement and completion of the work mentioned in the contract; that the tax bills are void because said extension ordinance, even if passed in time, extends the time for the completion of the work and not for the beginning thereof. Defendant Welsh contends that there was no time fixed for the beginning of the work, and that the first extension ordinance giving additional time for the completion of the work having been passed within 120 working days after the date that the contract became binding, and thereafter the time having been properly extended by other ordinances and the work having been completed within the time so extended, the tax bills are valid.

The charter of Kansas City relating to public improvements provides--

"The city shall have power, by ordinance, for any good cause, to extend the time of the beginning or of the completion of the work under any such contract, and an ordinance of the city purporting to extend the time therefor shall be conclusive evidence of the existence of good cause for such extension." [Sec. 3, Art. 8, p. 313, Charter of Kansas City, 1908.]

It will be noted that although the specifications included in the contract provide that the work shall be commenced and shall be completed within 120 working days after the date the contract becomes binding, it also provides for a penalty of $ 10 a day for each day that the work is not so completed, as liquidated damages. In the leading case of Heman v. Gilliam, 171 Mo. 258, it was held that a contract for the performance of work in the way of a street improvement which first specified a definite time for the completion of the work, followed by a penalty clause for the failure to complete it within the time designated, in the absence of a requirement by ordinance of the city that the work shall be completed within a definite time, may be complied with by the performance and completion of the work within a reasonable time. In other words, that time is not the essence of a contract in that form in the absence of an ordinance fixing a definite time for the completion of the work. In the case at bar the contract is made a part of the ordinance and it necessarily follows from the reasoning of the case just cited that if the penalty clause is found in the ordinance itself, it merely requires the completion of the work within a reasonable time.

In Merine v. Paving Co., 125 Mo.App. 623, the contract and specifications referred to in the ordinance provided as follows:

"'The work embraced in this contract shall be begun within ten (10) days after this contract binds and takes effect, and shall be prosecuted regularly and uninterruptedly thereafter with such force as to secure its full completion within two (2) months from the date of its confirmation; the time of beginning rate of progress and time of completion being essential conditions of this contract. If the contractor shall fail to complete the work within the time above specified, an amount equal to the sum of ten (10) dollars per day for each and every day thereafter, until such completion, shall be deducted as liquidated damages for such breach of this contract from the amount of the final estimate of said work.'"

The contract in that case as in this provided for days not to be counted including lost days in consequence of injunctions, bad weather, grading, curbing and trenching by other contractors, etc. That contract also contained a provision that if the work be not begun within ten days and not be prosecuted regularly and uninterruptedly thereafter with such force as to secure its full performance within two months from the date of its confirmation, the contractor should pay Kansas City the sum of $ 1179 liquidating damages, a similar provision to the one on the subject found in the contract in the case at bar. In that case, as in this, the time for the completion of the work under the contract was extended by ordinance and the work was actually completed within the time so extended, but the time for the beginning of the work was not extended and the work was not begun within ten days after the contract took effect. In that case the court said, l. c. 629, 630--

"The contract provides for a penalty, as we have seen, if the work is not completed within the time therein...