Barber Asphalt Pav. Co. v. Ullman

• Decision Date: 23 December 1896
• Citation: 38 S.W. 458,137 Mo. 543
• Parties: BARBER ASPHALT PAV. CO. v. ULLMAN.
• Court: Missouri Supreme Court

38 S.W. 458

137 Mo. 543

BARBER ASPHALT PAV. CO. v. ULLMAN.

Supreme Court of Missouri.

December 23, 1896.

MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENT — VALIDITY OF SPECIAL TAX — APPROVAL OF CONTRACT — PAVING CONTRACT — GUARANTY OF CONTRACTOR — REPAIRS — SUFFICIENCY OF ORDINANCE — PERFORMANCE — INTEREST — BILL OF EXCEPTIONS — DEPOSITIONS.

1. Under Rev. St. 1879, § 4784, declaring that a duly-authenticated special tax bill, issued in payment for street improvements, shall be prima facie evidence of the validity of the bill, of the doing of the work, and of the liability of the property to the charge, a special tax bill, issued in payment for street paving, with proof of the signature of the city engineer who issued it, places upon the owner of the property charged thereby the burden of proving its invalidity.

2. A special charter of a city declared that the mayor should be presiding officer of the council, and an ordinance passed under such charter provided that all contracts should be awarded by the mayor and city council. Subsequently the city accepted the general charter for cities of its class, which provided (Rev. St. 1879, § 4630) that one of the council should be chosen to preside, and also (section 4816) that all ordinances in force not inconsistent with the new charter should be operative until repealed. An ordinance authorizing the city engineer to advertise for bids for a street improvement provided that all ordinances inconsistent therewith were thereby repealed. A contract was entered into in conformity with the provisions of the ordinance by the engineer, and was duly approved by the council. Held, that the contract could not be impeached on the ground that it had not been approved by the mayor.

3. A contractor guarantied a pavement to be constructed under a contract with a city for five years, agreeing to keep the same in repair during the said period, and at the end thereof to turn the pavement over to the city in good order and condition. Held, not a mere agreement to repair, and therefore objectionable, as imposing upon the property owners assessed for the pavement a burden that should be borne by the city, but an agreement to construct in the first instance a pavement good for five years. Burgess and Gantt, JJ., dissenting.

4. A paving contract which contains an agreement that, after five years, during which time the pavement is to be kept in repair free of cost, the contractor will keep the pavement in repair at a fixed price, to be paid by the city, will not be declared invalid, on the ground that the agreement to repair imposed an additional burden on the property owners assessed for the original improvement, in the absence of anything to show that the bid for the original improvement was increased by the contractor in contemplation of the low price demanded for the repairs.

5. An ordinance authorizing the paving of a street "with Trinidad asphaltum, according to specifications on file in the office of the city engineer," is sufficiently definite as to the material of the proposed improvement.

6. Under Rev. St. 1879, § 4784, relating to the lien attaching under special tax bills for public improvements, a defense that the work was not done in a good and substantial manner, as required by the contract, can be pleaded only by way of reduction of the amount of the bill, when accompanied by a tender of the amount justly due for the work as actually performed

7. Under Rev. St. 1879, § 4784, relating to special tax bills, interest is chargeable thereon at the rate of 15 per cent. per annum if not paid within 30 days from the date of issue.

8. An ordinance authorizing the construction of a pavement, and the resetting of the curb on a certain street, recited that the paving should be done according to specifications in the office of the city engineer, and authorized that officer to have the curbing on such street reset. Held, that the reference in the ordinance to the specifications was a sufficient description of the whole work.

9. Under Rev. St. 1889, § 2168, providing that exceptions may be filed at the time, or during the term at which it is taken, an exception to a ruling striking out a portion of a pleading cannot be brought into a final bill of exceptions filed at a subsequent term, unless it was taken by a bill filed at the term when such ruling became final.

10. A deposition is properly excluded where the witness is personally present at the trial, and it does not appear that its introduction was desired for impeachment, or as showing an admission by the witness.

In banc. Appeal from circuit court, Platte county; W. S. Herndon, Judge.

Action by the Barber Asphalt Paving Company against Benjamin Ullman to recover upon special tax bills issued in payment of public improvements in the city of St. Joseph. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff had judgment in the circuit court on two special tax bills for an amount in excess of $2,500. Defendant appealed. The bills were based on an ordinance, approved June 27, 1887, as follows:

"Special Ordinance No. 280.

"An ordinance to provide for the paving of Sixth street from the north line of Hall street to the north line of Atchison street, with Trinidad sheet asphaltum, and for the setting of the curb to the proper line and grade.

"Be it ordered by the common council of the city of St. Joseph as follows:

"Section 1. That it is found and declared by the common council that property holders owning a majority in front feet of the property owned by residents of this city, and fronting on Sixth street, between the north line of Hall street and north line of Atchison street, in the city of St. Joseph, have petitioned said common council to have said Sixth street, between the north line of Hall street and the north line of Atchison street, of said city, paved with Trinidad sheet asphaltum, according to the specification therefor on file in the office of city engineer, and that the petition for such paving has been duly published according to law.

"Sec. 2. That said Sixth street, between the north line of Hall street and the north line of Atchison street, of said city of St. Joseph, be paved with Trinidad sheet asphaltum, in accordance with said petition and said specifications on file in the office of the city engineer, and that the total cost of such paving be, and it is, charged, assessed, and levied as a special tax bill on and against all real estate, fronting on both sides of said Sixth street, between the streets aforesaid.

"Sec. 3. That the said paving of said Sixth street, between the streets named in the preceding section, be paid for in special tax bills made out and specified by the city engineer, against the several lots or parcels of land charged, as required by law: provided, however, that when the owner of any lot or parcel of ground fronting on Sixth street, within the streets herein above ordered to be paved, shall, within ten days after the letting of the contract for such work, notify the city engineer, in writing, that he desires to pay for such work in five annual payments, the city engineer, in pursuance of said notice, shall make out five separate special tax bills, bearing interest as required by law. Such five separate special tax bills shall bear interest at the rate of seven per cent. per annum, from the date of the issue until the maturity thereof, and the passage of this ordinance and the doing of said work shall not render the city liable to pay for such work, or any part thereof.

"Sec. 4. That the city engineer proceed forthwith to advertise for ten days, according to law and the ordinances of the city, for bids for paving Sixth street, between the streets aforesaid, with Trinidad sheet asphaltum, according to said specifications on file in the office of the city engineer.

"Sec. 5. That the city engineer is hereby ordered to have the curbing on Sixth street, between the streets hereinabove ordered to be paved, set to proper line and grade.

"Sec. 6. That all ordinances or parts of ordinances in conflict or inconsistent with this ordinance be, and the same are hereby, repealed.

                  "Approved June 27, 1887
                   "[Seal.]     Thomas H. Doyle, Mayor
                  "Attest: Purd B. Wright, City Clerk."
                

The contract for the work on which the special tax is founded is quite long. It contains a mass of particulars that are not relevant, as well as many that are vital, to this litigation. The following is an outline of its principal features, including quotations of the important parts:

The parties named are the plaintiff, as principal and party of the first part, and the city of St. Joseph, as party of the second part. Then follow recitals of the letting to plaintiff as lowest and best bidder under the above-quoted Ordinance No. 280, and a statement of the general scope of the contract:

"Whereas, the party of the second part did let unto the said the Barber Asphalt Paving Company the work of paving Sixth street from the north line of Hall street to the north line of Atchison street with Trinidad sheet asphaltum, and for the setting of the curb to the proper line and grade, by taking up and removing the old pavement, preparing the roadway, and readjusting the curbing, laying a roadway pavement, to consist of a base of hydraulic cement concrete, covered with a wearing surface, composed of a mixture of refined Trinidad asphalt, heavy petroleum oil, sand, and powered carbonate of lime, making all proper connections and intersections with other streets and alleys, and to maintain paved street for a period of five years without cost to the city, and to further maintain said paved street for an additional period of five years, commencing five years after the work of paving is completed and accepted, as by above-mentioned ordinance specified, at the prices hereinafter stated.

"Specifications. Now, therefore, in consideration of the payments and covenants hereinafter mentioned, to be made and...