Ash & Gentry v. City of Independence

• Decision Date: 28 February 1903
• Citation: 77 S.W. 104,103 Mo. App. 299
• Parties: ASH & GENTRY v. CITY OF INDEPENDENCE.<SMALL><SUP>*</SUP></SMALL>
• Court: Missouri Court of Appeals

77 S.W. 104

103 Mo. App. 299

ASH & GENTRY v. CITY OF INDEPENDENCE.^*

Court of Appeals at Kansas City, Missouri.

February 28, 1903.

MUNICIPAL CORPORATION — BREACH OF CONTRACT — CAUSE OF ACTION — LIMITATIONS.

1. A cause of action against a city for failure to properly assess damages to property, by reason of which plaintiffs were prevented by injunction from completing a contract for improvements for the city and receiving pay therefor, accrues so that limitations commence to run at least from the time when plaintiffs were notified by the injunction of the city's failure in precedent performance.

Appeal from Circuit Court, Jackson County; John W. Henry, Judge.

Action by Ash & Gentry against the city of Independence. From a judgment for plaintiffs, defendant appeals. Reversed.

Paxton & Rose and W. S. Flournoy, for appellant. L. A. Laughlin, for respondents.

ELLISON, J.

Plaintiffs were contractors in certain street improvements in the city of Independence. After having done a large part of the work, they were prohibited by an injunction obtained by a property holder from going on therewith, on the ground that the city had not had assessed the damages and benefits caused by said improvement, as required by law. The plaintiffs were thus prevented from completing the work. Tax bills were afterwards issued to plaintiffs for the work done, and these were declared invalid on two grounds — one, that the city levied the tax upon only a part of the property abutting upon the street improved; and the other, that the whole work had not been completed. City of Independence v. Gates, 110 Mo. 374, 19 S. W. 728. The plaintiffs brought the present action against the city for damages on the ground that, by the fault of the city in not having the damages assessed, they were prevented from completing the work, and were thereby deprived of valid tax bills. On a trial, judgment was given for the city, and plaintiffs appealed the case to the Supreme Court, where it was transferred to this court. 145 Mo. 120, 46 S. W. 749. That result was reversed in this court, and the cause remanded for new trial; this court holding the city liable on the case there presented. Ash & Gentry v. Independence, 79 Mo. App. 70. On a retrial an amended answer was filed, in which, among other defenses, the statute of limitations was pleaded, and a constitutional question was attempted to be raised. Plaintiffs obtained judgment for damages, and defendant appealed to the Supreme Court, and that court, being of the opinion that there was no constitutional question presented, transferred the case here.

These facts appear on the question of limitation: The contract for the improvement was made by these plaintiffs August 8, 1887. By its terms, work was to be begun within 10 days thereafter, and was to be completed within 20 days after that, viz., September 7, 1887. Time was stipulated as a condition of the contract. The injunction which stopped plaintiffs from work was issued September 17, 1887, and was made perpetual March 15, 1888. This action was begun more than five years thereafter, to wit, on March 25, 1893. We determined in the case of Brady v. St. Joseph, 84 Mo. App. 399, that the five-year period of limitations applied to a case of the kind before us. The question then is, when did plaintiffs' cause of action accrue against the defendant city? It accrued on the first day that plaintiffs might have instituted their action. The contract was that plaintiffs should make full performance by September 7, 1887. That implied that defendant would perform all duties on its part necessary as a prerequisite to ...