77 S.W. 104 (Mo.App. 1903), Ash & Gentry v. City of Independence

Citation:77 S.W. 104, 103 Mo.App. 299
Opinion Judge:ELLISON, J.
Party Name:ASH & GENTRY, Respondents, v. CITY OF INDEPENDENCE, Appellant
Attorney:Paxton & Rose for appellant. L. A. Laughlin for respondents.
Judge Panel:ELLISON, J. BROADDUS, J., concurring on rehearing. BROADDUS
Case Date:November 09, 1903
Court:Court of Appeals of Missouri
 
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Page 104

77 S.W. 104 (Mo.App. 1903)

103 Mo.App. 299

ASH & GENTRY, Respondents,

v.

CITY OF INDEPENDENCE, Appellant

Court of Appeals of Missouri, Kansas City

November 9, 1903

February 2, 1903;

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

REVERSED.

Judgment reversed.

Paxton & Rose for appellant.

(1) The contract ran from August 18, 1887, to September 7, 1887. If plaintiffs had any cause of action it arose September 7, 1887, and was barred March 25, 1893, when this suit was brought. Brady v. St. Joseph, 84 Mo.App. 399; Carr v. Thompson, 67 Mo. 472-476; R. S. 1899, sec. 4271. (2) If the city suffered an injunction to go against the work, and if such injunction was caused by the fault of the city, then plaintiff's right of action arose at the date of such injunction, September 17, 1887, and was barred by limitation when this suit was brought, March 25, 1893. Murray v. Kansas City, 47 Mo.App. 105; Bean v. Miller, 69 Mo. 384. (3) This court found that the taxbills were void on account of the fault of these plaintiffs in not grading College street, and the city is not liable. Plaintiffs are bound by this decision. State ex rel. v. St. Louis, 145 Mo. 551; Carmody v. Hanick, 85 Mo.App. 659; Crispen v. Hannavan, 50 Mo. 415; Groscheke v. Bardenheimer, 15 Mo.App. 353. (4) The time within which the contract was to be completed had expired, no extension had been granted, and plaintiffs were in default when the injunction was granted, September 17, 1887. Rose v. Trestrail, 62 Mo.App. 352; Kemp v. Humphreys, 13 Ill. 573; Morgan v. Herrick, 21 Ill. 481-495; Wells v. Smith, 2 Edw. Chy. (N. Y.) 78; Kirby v. Harrison, 20 Ohio St. 326, 59 Am. Dec. 677; Garretson v. Vanloon, 3 G. Greene 128, 54 Am. Dec. 492.

L. A. Laughlin for respondents.

(1) One point made by defendant is that the time for completing the contract expired on September 7, 1887, according to its terms so that the contract was already forfeited and the plaintiffs could not have recovered if there had been no injunction. General Ordinance No. 195 under which this work was done, contains no provision as to the time in which the work shall be completed. The case falls within the rule laid down in Carlin v. Cavender, 56 Mo. 286, and distinguished in Springfield v. Davis, 80 Mo.App. 574, 578. The city engineer had the power to waive this provision of the contract and the evidence...

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