Childers v. Holmes

• Decision Date: 02 June 1902
• Citation: 95 Mo. App. 154,68 S.W. 1046
• Parties: CHILDERS v. HOLMES et al.
• Court: Missouri Court of Appeals

68 S.W. 1046

95 Mo. App. 154

CHILDERS v. HOLMES et al.

Court of Appeals at Kansas City, Missouri.

June 2, 1902.

MUNICIPAL CORPORATIONS — STREET CURBING — CONTRACTS — TIME LIMITS — FAILURE TO COMPLETE — WORK BY ADJOINING OWNER — VOID TAX BILLS.

1. Where an ordinance providing for the curbing of a street did not prescribe a specific time within which the work was to be done, but the contract contained a time limit of 100 days, with forfeiture provisions, which contract was confirmed by ordinance, and the limit extended 45 days, the time limit for the completion of the work was at most 145 days.

2. An objection that a contractor was prevented from completing a contract for street curbing within the time limit by acts of the city officials is without merit where the work was not completed within the time limit, even though the time for all such interruptions was excluded.

3. The fact that the part of a street curbing which was done by the public contractor under private contract with the property owner was not completed within the time limit of the contract with the city, forfeits the entire contract,

the city and property owners being interested in the completion of the whole work, and not a part thereof.

4. Where an ordinance provided that the property owners on a certain street should curb the same, and that at the expiration of a certain time the city would let a contract for such work as they had not elected to do, a city contract which included in the work let a portion of the work which the property owner had contracted for was void, and tax bills in favor of the contractor against the property owners were illegal.

Appeal from circuit court, Jackson county; E. P. Gates, Judge.

Action by J. R. Childers against James T. Holmes and others. From a judgment in favor of the plaintiff, the defendants appeal. Reversed.

Gage, Ladd & Small, for appellants. T. B. Buckner, for respondent.

ELLISON, J.

This is an action on two special tax bills issued for putting in curbing on one of the streets of Kansas City. The plaintiff is assignee of the contractor, and obtained judgment in the trial court. The facts necessary to an understanding of the case are that on the 23d day of November, 1895, an ordinance was passed by the council of Kansas City providing for the work. The ordinance provided that the curbing was deemed necessary to be done by the council, and that all of the curbing not done by owners of the property liable to be charged should be paid for by special tax bills. It further provided for notice by advertisement to the owners of the property to put in the curbing within 30 days of the first day of publication, and after the expiration of the 30 days the city engineer should give 10 days' notice of a public letting of the work not put in by the owners. None of the work was done by the owners within said 30 days' period, and thereafter, on February 25, 1896, the entire work was contracted to J. A. Elliott at 45¾ cents per lineal foot, in pursuance of a letting to him after proper notice. He gave bond as required by law, with T. L. Rowland and James G. Minear as sureties, for the faithful performance of the contract. The contract provided that the work should be completed within 100 days. On the 4th of March, 1896, the city council passed an ordinance confirming said contract. The 100 days limited to do the work expired in the month of June thereafter, and, the work not being then completed, the city council, on July 29, 1896, passed an ordinance extending the time in which to complete it for 45 days. The curbing was to be upon both sides of Fifteenth street from Virginia avenue to the eastern city limits. A material portion of this work thus contracted to Elliott by the city (that fronting the property of Foster) was not done under the contract. It was done by Elliott for Foster under a private contract at a less price per foot than his bid for the whole work, and which he had secured from Foster before he bid in and contracted the work from the city. The contract with the city contained provisions in regard to forfeiture of $10 per day if the work was not completed in the time agreed, and of the right of the city engineer to stop work or extend the time thereunder; and that, if it was not begun in 10 days after the contract was binding, and prosecuted uninterruptedly with sufficient force to complete it within the 100 days, the contractor would forfeit $600, etc. Similar provisions were discussed in McQuiddy v. Brannock, 70 Mo. App. 535, and need not be further noticed. The trial court refused a demurrer to the evidence, and refused instructions declaring that the private contract with Foster avoided the tax bills. It likewise refused an instruction declaring that, if the work was not completed within the 100 days limited by the contract, the bills were void; and an instruction that, if the work was not done within the time as extended 45 days, the bills were void.

1. From the foregoing statement it will be observed that the ordinance providing for the work did not prescribe a specific time in which it should be done; that the contract did prescribe the specific time of 100 days, and that the contract was confirmed by ordinance. This state of facts fixed the time at 100 days. Ayres v. Schmohl, 86 Mo. App. 349. It may be conceded in plaintiff's behalf (without deciding) that the time was properly extended by ordinance for 45 days. If, therefore, the fact be that the work was not completed within that time, the bills are void, and the judgment should have been for the defendant. Paving Co. v. Ridge (Mo. Sup.; decided May 26, 1902) 68 S. W. 1043; Neill v. Gates, 152 Mo. 585, 54 S. W. 460; McQuiddy v. Brannock, 70 Mo. App. 535; Rose v. Trestrail, 62 Mo. App. 352; Whittemore v. Sills, 76 Mo. App. 248; Trust Co. v. James, 77 Mo. App. 616; Winfrey v. Linger, 89 Mo. App. 159; City of Springfield v. Davis, 80 Mo. App. 574. An examination of the record discloses that the work contracted for was not completed until several months after the expiration of the time, counting in the extension aforesaid. There is much urged by plaintiff as to the...