Allen v. Force

• Citation: 68 S.W. 1057,95 Mo.App. 324
• Parties: HENRY S. ALLEN, Respondent, v. W. B. LA FORCE et al., Appellants
• Decision Date: 09 June 1902
• Court: Kansas Court of Appeals

68 S.W. 1057

95 Mo.App. 324

HENRY S. ALLEN, Respondent, v. W. B. LA FORCE et al., Appellants

Court of Appeals of Missouri, Kansas City

June 9, 1902

Appeal from Jackson Circuit Court.--Hon. J. H. Slover, Judge.

AFFIRMED.

Judgment affirmed.

Marley & Swearingen for appellants.

(1) Ordinance number 8438 is void because it fails to designate any time within which the improvement was to commence or be completed; and confers no authority, immediate or otherwise upon any person to proceed to make the improvements. McQuiddy v. Brannock, 70 Mo.App. 535; Carlin v Cavender, 56 Mo. 288. (2) The ordinances passed upon in Carlin v. Cavender, 56 Mo. 288, and Sheehan v Gleeson, 46 Mo. 106, are direct and immediate orders upon the city engineer to cause the work to be done and, therefore, confer an immediate authority, in that respect differing from ordinance number 8438.

W. N. Pickard for respondent.

The point involved in this case has been passed upon both by this court and the Supreme Court. Carlin v. Cavender, 56 Mo. 286; Strassheim v. Jerman, 56 Mo. 104; Ayers v. Schmohl, 86 Mo.App. 353.

OPINION

BROADDUS, J.

--This is a suit upon certain taxbills issued for work done in improving Olive street in Kansas City, Missouri. An ordinance was regularly passed by the common council of said city providing for paving said street, under which a contract was awarded to H. S. Trestrail to do the work. There is no complaint in regard to the regularity of any of the proceedings, or that the work was not completed as the contract specified, except that the ordinance was void, as it did not fix any time for the completion of the work.

The appeal is taken under the misapprehension that time is of the essence of a contract of this character, and for that reason the plaintiff, as assignee of said contractor, can not recover. In support of this contention, the defendant relies on the following cases, viz.: McQuiddy v. Brannock, 70 Mo.App. 535; Carlin v. Cavender, 56 Mo. 286.

The facts in the first case were that, the contract prescribed that the work should be completed in eighty days from the date when the contract went into effect. The contractor failed to so finish the work, because he was interrupted by injunction proceedings. The court held, that time was of the essence of the contract, and the contractor could not avail himself of the defense set up, that he was prevented from compliance, because he was delayed by the injunction proceedings, as he had...