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|
February 2, 1903;
Appeal from Jackson Circuit Court.--Hon. John W. Henry, Judge.
(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.
(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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