Ash & Gentry v. City of Independence

• Decision Date: 09 November 1903
• Citation: 77 S.W. 104,103 Mo.App. 299
• Parties: ASH & GENTRY, Respondents, v. CITY OF INDEPENDENCE, Appellant
• Court: Kansas Court of Appeals

77 S.W. 104

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 shows that he did so by directing the plaintiffs to round up the work after the restraining order was granted on September 17, 1887. Besides the board of aldermen afterwards accepted the work on December 23, 1887. This was a complete waiver of the time provision in the contract. Leavenworth v. Mills, 6 Kas. 288. (2) Defendant's sixth claim is that the plaintiff's right of action is barred by the statute of limitations. Conceding that the decision of the Kansas City Court of Appeals in Brady v. St. Joseph, 84 Mo.App. 399, that the five-year limitation applies to this kind of an action, the question arises when did the plaintiff's right of action accrue? The breach of duty upon the part of the city for which this action is brought is the failure of the city to assess damages and benefits within a reasonable time after the necessity for doing so arose. The mere fact that a perpetual injunction was granted gave to plaintiffs no right of action against the city. Plaintiffs would have had no right of action against the city the next day after the perpetual injunction was granted, because the city was entitled to a reasonable time thereafter in which to take the necessary steps to assess the damages and benefits. Commercial Nat'l Bank v. Portland, 24 Ore. 188; 19 Am. and Eng. Law, 202, 288; Dry Goods Co. v. Goss, 65 Mo.App. 55; Railroad v. Com. Co., 71 Mo.App. 299.

ELLISON J. BROADDUS, J., concurring on rehearing.

OPINION

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. Taxbills 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 taxbills. 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. 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 ten days thereafter and was to be completed within twenty 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 plaintiff's 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...