Neill v. Gates

• Decision Date: 12 December 1899
• Parties: Neill, Appellant, v. Gates
• Court: Missouri Supreme Court

54 S.W. 460

152 Mo. 585

Neill, Appellant, v. Gates

Supreme Court of Missouri, Second Division

December 12, 1899

Appeal from Jackson Circuit Court. -- Hon. John W. Henry, Judge.

Affirmed.

Karnes New & Krauthoff and A. F. Smith for appellant.

(1) The ordinance and contract are not inconsistent. The same tax involved in the Brannock case 70 Mo.App. 535, have been before the Kansas City Court of Appeals three times. McQuiddy v. Vineyard, 60 Mo.App. 610; McQuiddy v. Smith, 67 Mo. App., 205 and McQuiddy v Gates, 69 Mo.App. 156. The same proceedings have been followed in every case appealed from the Jackson circuit court involving Kansas City tax bills, for the last ten years, and in not one of them was the question raised. Forry v. Ridge, 56 Mo.App. 615; Quest v Johnson, 58 Mo.App. 54; Dollar Savings Bank v. Ridge, 62 Mo.App. 324; Jaicks v. Sullivan, 128 Mo. 177. (2) The common council has solemnly approved this contract in all its terms. It will be argued that the contract was void because it did not conform to the ordinance in reference to the time when the work should be completed. But the contract does conform to the ordinance. The ordinance says that the work shall be completed within ninety days from the time the contract shall take effect. So does the contract. But the ordinance does not say what the result of a failure to comply shall be. The contract does. For years it had been the custom of the succeeding boards of aldermen of Kansas City to understand that it was their duty to put a time limit in every ordinance authorizing any public improvement, and to understand that the failure of the contractor was to be punished under a general ordinance, which by the general ordinances of Kansas City was to "be deemed and taken as a part of every contract for the doing of any work," it being provided by the general ordinances that every contract "shall contain a clause that the same is entered into subject to the existing charter and ordinances of the city." People ex rel. v. Supervisors, 17 N.Y. 235; Cooley, Const. Lim. (6 Ed.), p. 216; Sheehan v. Owen, 82 Mo. 458; Marionville to use v. Henson, 65 Mo.App. 405; Johnson v. Duer, 115 Mo. 381.

Ess & Georgen for respondent.

(1) Since the contract provides that "the time of beginning, rate of progress and time of completion being essential conditions of this contract," etc., time was of the essence of this contract by the ordinance and contract. The work was not done in the time provided for, and the tax bill is void. Rose v. Trestrail, 62 Mo.App. 356; McQuiddy v. Brannock, 70 Mo.App. 539 and 542; New England Safe Deposit & Trust Co. v. James, 77 Mo.App. 618; Brown v. Guaranty Trust Co., 128 U.S. 414; Cheney v. Libby, 134 U.S. 77. The common council have the power to fix the time in which a district sewer shall be constructed. (2) The engineer canceled the contract on February 11, 1892, 202 days after the time the contractor was to have completed it; and if we exclude the time the temporary injunction was in force, 131 days after it took effect, this cancellation was valid and ended the contract. Williams v. Railroad, 112 Mo. 487; Chapman v. Railroad, 114 Mo. 549; Dinsmore v. Livingston Co., 60 Mo. 244; Kihlberg v. U.S. 97 U.S. 401; Breitting v. New Orleans, 24 La. Ann. 21; Easton v. Penn. & Ohio Canal Co., 13 Oh. 83; Chapman v. Lowell, 4 Cush. 380; Norrington v. Wright, 115 U.S. 188. (3) The time was not extended at any time during the ninety days next succeeding July 23, 1891. The contract expired by its own terms, and by ordinance numbered 3247, on October 21, 1891. The injunction was no excuse for any delay beyond October 21, 1891. Harrison v. Railroad, 74 Mo. 371; McQuiddy v. Brannock, 70 Mo.App. 542. (4) Ordinance 5453 is repealed by ordinance 5532, approved December 6, 1893. This did not in terms or by legal effect revive ordinance 3247. In order to revive it or re-enact it, "the same shall be set forth at length as if it were an original ordinance." Kansas City Charter, art. III, sec. 9; Mayor v. Trigg, 46 Mo. 288; State v. Slaughter, 70 Mo. 487; State v. Grant, 79 Mo. 132; Milne v. Huber, 3 McLean 213; Stuman v. State, 21 Tex. 736.

BURGESS, J. Gantt, P. J., concurs; Sherwood, J., absent.

OPINION

BURGESS, J.

This is an action by plaintiff as assignee of one James Pryor on six different tax bills aggregating, not including interest when the suit was begun, the sum of $ 2,515.85, and issued by Kansas City against six different tracts of land owned by defendant, in Sewer District No. 167, in said city.

On April 18, 1891, an ordinance was passed by Kansas City establishing Sewer District No. 167, which embraced the land against which the tax bills involved in this litigation were issued. Thereafter on June 10, 1891, an ordinance No. 3247 was passed, authorizing the construction of sewers in said district, by which it was provided that "the work should be completed within ninety days from the time a contract binds and takes effect," the ordinance reciting that "this work the Board of Public Works and Common Council deem necessary for sanitary and drainage purposes."

The work was let by contract to said Pryor, and approved by ordinance of date July 23, 1891. By its terms work was to be begun in ten days and to be completed in ninety days from the time the contract was executed. The contract provided that the contractor should not be entitled to any portion of the contract price until the work was completed to the satisfaction of the city engineer, and then only in tax bills. The time in which the work was to be completed expired October 21, 1891. The work was begun, and continued up to August 21, 1891, when Jennie C. Wiltsee and others brought suit against the contractors and Kansas City, and obtained a temporary injunction restraining them from a continuation of the work. The injunction was dissolved on October 31, 1891, but from the time it was granted until its dissolution, no work was done on the sewer.

The contract provides that:

"6. The work embraced in this contract shall be begun within ten days after this contract binds and takes effect, and shall be prosecuted regularly and uninterruptedly thereafter (unless the engineer shall specially direct otherwise in writing) with such force as to secure its full completion within ninety days from the date of its confirmation; the time of beginning, rate of progress, and time of completion being essential conditions of this contract. And if the contractor shall fail to complete the work within the time above specified, an amount equal to the sum of ten 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.

"7. If, in the opinion of the engineer, the first party, at any time during the progress of the work, is not prosecuting the work with a sufficient force to insure its completion within the time specified in this contract, he may notify the first party to employ such additional force as he deems sufficient; and on the failure of said first party to comply with such notice within three days after its delivery, the engineer may put on such additional force at the cost of the said first party or he may, at his option, declare the contract annulled.

"And the power is reserved to the city engineer by Kansas City to suspend or annul this contract or to suspend the doing of any work thereunder at any time for any failure on the part of the first party to fulfill the same, or for other good cause; and any action of the city engineer in suspending or annulling this contract, or suspending the doing of the work thereunder, and his decision as to the existence of cause or reason for such annulment or suspension shall be conclusive as to the existence of such cause or reason in any controversy or litigation between the parties hereto, or others claiming under them. And if this contract be so suspended or annulled, the said first party shall not be entitled to anything on account of damages thereby nor shall such annulment or suspension in any wise affect the right of said Kansas City to damages and penalties claimed by it on account of the failure of said first party."

The evidence showed that work amounting to $ 4,000 at the contract price, was done up to February 11, 1892.

On February 4, 1892, the city engineer, Butts, wrote Pryor, the contractor, and his sureties on his bond as contractor, to proceed with the work in three days, and on his failure to do so he would annul the contract, which he, the engineer in so far as he had power to do so did on February 11, 1892, because Pryor would not proceed with the work, and, so notified the board of public works.

Butts, the engineer, went out of office in May, 1892, and was succeeded by John Donnelly. Pryor paid no attention to the cancellation of his contract by Butts, but continued to work on said sewer with the full knowledge and consent of Donnelly, the successor of Butts, until October 24, 1893, when the Common Council of Kansas City passed an ordinance, No. 5453, to construct a district sewer in Sewer District No. 167, and by it repealed ordinance No. 3247 entitled: "An Ordinance to establish and cause to be constructed district sewer in Sewer District No. 167," approved June 10, 1891.

This last named ordinance makes no reference to the ordinance approving the contract between the city and the contractor, nor does it refer to the contract.

On December 6, 1893, the Common Council of Kansas City passed "an ordinance to repeal an ordinance of Kansas City No. 5453, entitled: 'An ordinance to construct a district sewer in Sewer District No. 167,' approved October 24, 1893."

On March 19, 1894, said council passed an...