Hill-O'Meara Construction Co. v. Hutchinson
| Citation | 73 S.W. 318,100 Mo.App. 294 |
| Parties | HILL-O'MEARA CONSTRUCTION COMPANY, Respondent, v. SARAH L. HUTCHINSON et al., Appellants |
| Decision Date | 17 March 1903 |
| Court | Court of Appeal of Missouri (US) |
Appeal from St. Louis City Circuit Court.--Hon. John A. Talty Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Leverett Bell for appellants.
(1) Where an ordinance subsequent to the letting of a contract for special tax work reduces materially the dimensions and extent of the improvement and work to be done as compared with the original ordinance directing the same, the contract is vitiated and the special taxbills issued thereunder are void. Trenton v. Collier, 68 Mo.App. 483; Warren v. Chandos, 115 Cal. 382; Sections 15 and 27, article 6 City Charter; 2 R. S. 1899, pp. 2511, 2514; Guinotte v Eglehoff, 64 Mo.App. 356; West v. Porter, 89 Mo.App. 150. (2) The estoppel pleaded in the reply of plaintiff to the answer in this case is not supported by the evidence, nor is it good in law against the property-owner. Galbreath v. Newton, 30 Mo.App. 380; Keane v. Klausman, 21 Mo.App. 485; Marr v. Bunker, 92 Mo.App. 651; Miller v. R. W. Co., 162 Mo. 436; 11 Am. and Eng. Ency. 387; Blodgett v. Perry, 97 Mo. 263. (3) The trial court erred in excluding testimony that the work was not completed within the time named in the contract, and in refusing to allow defendants to amend their answer upon said adverse ruling being announced. Winfrey v. Linger, 89 Mo.App. 158; Sec. 657, R. S. 1899; Turner v. Thomas, 10 Mo.App. 338; Neill v. Gates, 152 Mo. 585; McQuiddy v. Brannock, 70 Mo.App. 535; Trust Co. v. James, 77 Mo.App. 616; Carr v. Moss, 87 Mo. 447; Weber v. Hannibal, 83 Mo. 262; Iron Co. v. Cooperage Co., 112 Mo. 383.
Collins & Chappell for respondent.
(1) The special taxbill sued on is not invalid by reason of the approval of the special ordinance reducing the width of the roadway on Taylor avenue after the execution of the contract under which said roadway was improved. Springfield to Use v. Weaver, 137 Mo. 650; Cole v. Skrainka, 105 Mo. 303. (2) Even if the taxbill sued on was rendered void by reason of the special ordinance reducing the width of the roadway on Taylor avenue, the defendants in this case are estopped to assert that said bill is void. Brick & Terra Cotta Co. v. Hull, 49 Mo.App. 433; Sheehan v. Owen, 82 Mo. 458; Cross v. City of Kansas, 90 Mo. 13; Verdin v. St. Louis, 131 Mo. 26; Vaile v. Independence, 116 Mo. 333; Evansville v. Pfister, 34 Ind. 36; DePuy v. Wabash, 133 Ind. 32; Schaumm v. Seymour, 24 N.J.Eq. 143; Wilkesbarre v. McDermott, 6 Kulp 345; Liebstein v. Newark, 24 N.J.Eq. 200; Pittsburg v. MacConnell, 130 Pa. St. 645. (3) The court committed no error in excluding evidence as to the condition of the street after the completion of the work thereon.
--In this case, which is on a special taxbill issued for paving and otherwise improving a portion of Taylor avenue in the city of St. Louis, only three defenses require our attention, although others were made in the court below. Those three defenses, as stated by the appellants, are: that the work and materials were defective and insufficient, of no benefit to appellant's property, and did not comply with the contract between the city and the respondent; that the improvement was not finished within the time limit prescribed by the ordinance ordering it, and that after said ordinance had been enacted and the contract for the paving let to the respondent, another ordinance was passed by which the width of the roadway to be paved was reduced from thirty-six to thirty feet.
The defense based on the alleged failure of respondent as contractor to lay the paving according to the contract was preferred by the answer and is allowable, as the charter of the city of St. Louis provides that a party charged with payment of a taxbill may plead in reduction of its amount that the work mentioned in it was not done in a good and workmanlike manner. St. L. Mun. Char., art. 6, sec. 25. The petition alleged the paving was done in a good and workmanlike manner; the answer denied this and also specially pleaded, as stated above, that the work was defective and insufficient. The contract for the improvement contained a clause by which the Hill-O'Meara Construction Company warranted the pavement for one year after its completion and bound itself for the expense of repairs which might become necessary on account of imperfections in the work or materials in that time. Said contract, in conformity to the city ordinance, also required the construction company to pay $ 200 into the city treasury to be used for making such repairs, and this condition was complied with by respondent.
To support the defense of defective construction, certain questions were asked of witnesses concerning the condition of the pavement at the time of the trial and during the first year after it was laid. Those questions were objected to on the score that its condition at the time of the trial several years after it was put down, was immaterial, while its condition during the first year, in view of the above stipulation of the contract, was a matter between the city and the contractor. The objections were sustained; but the circuit judge said appellants might show the contractor did not live up to the contract. Those rulings were inconsistent. Evidence of the condition of the pavement when the trial occurred was remote, but its condition during the first year it was down was relevant; because one can readily see that its condition then might have been such as tended to prove, or, indeed, conclusively proved, it was not laid in a good and workmanlike manner. The fact that the construction company was bound to repair during the first year did not justify the exclusion of the testimony in question. That stipulation for the benefit of the city, which pays for repairs out of public funds, in no way subtracts from the property-owner's charter right to plead bad construction in reduction of the amount of a taxbill. Error was committed in refusing appellant's offer to prove the condition of the pavement during the first year it was in use.
So far as appears, the ordinance ordering the improvement fixed no time for its completion, but the contract between the city and the construction company required the respondent to begin work in one week after written notice to do so was given by the street commissioner and carry it on regularly and uninterruptedly, unless otherwise ordered, with such force as to insure its completion in six weeks thereafter. The street commissioner notified the construction company on April 17, 1897, to begin work in one week and complete the improvement by June 8th.
The answer set up no defense based on the failure of the construction company to finish in time unless that defense is made by the general denial of the allegations of the petition, one of which was that the work was done in a good and workmanlike manner with the material and in the manner prescribed by the contract. But the general denial did not contain this defense; for it would be a perversion of language to say the allegation of the petition that the work was completed in the manner prescribed by the contract means it was completed within the time limited. Appellants asked permission during the progress of the trial to amend their answer in this regard, which request was denied, and that ruling is now said to have been an abuse of judicial discretion. We would not reverse the judgment on that ground; but as the case will probably be retried, we refer to the case of Heman v. Gilliam, 71 S.W. 163 in which it was decided that where a city ordinance, directing an improvement, fixes no time limit for its completion, but the contract does, with a proviso that the contractor shall suffer a per diem...
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