Barber Asphalt Paving Co. v. City of Des Moines
| Decision Date | 25 June 1921 |
| Docket Number | 33857 |
| Parties | BARBER ASPHALT PAVING COMPANY, Appellee, v. CITY OF DES MOINES, Appellant |
| Court | Iowa Supreme Court |
Appeal from Polk District Court.--HUBERT UTTERBACK, Judge.
ACTION in equity to recover an amount equal to a special assessment of $ 359.49, with interest thereon, and also an amount equal to the interest on a paving contract, which interest was not included in assessment certificates. Appeal from judgment in favor of plaintiff. Facts appear in the opinion.
Affirmed.
Charles W. Lyon, Edwin J. Frisk, Chauncey A. Weaver, and Russell Jordan, for appellant.
Sargent Gamble & Read, for appellee.
Plaintiff 's petition is in two counts. In the first count, it seeks to recover judgment against the defendant for the amount, with interest, of a special assessment certificate issued and delivered by the city of Des Moines to plaintiff pursuant to a contract for the construction of pavement on one of the streets of the defendant city, which special assessment was held to be invalid because of failure of jurisdiction, the property known as the Hurley property, mentioned in the assessment being held not subject to assessment.
In the second count of its petition, plaintiff asked judgment against the city of Des Moines for an amount equal to the amount of interest on the contract price for the period from June 24, 1908, to December 31, 1913. The basis of this claim is that the plaintiff was entitled to 6 per cent interest on the contract price for paving, and was defeated in its right to receive and have the same, because of the failure of the city to include the accrued interest in the assessment certificates issued by the city in settlement under the contract.
Defendant set up three defenses:
(1) That the plaintiff is estopped from maintaining this action.
(2) That plaintiff's cause of action is barred by the statute of limitation.
(3) That the matters relied upon by the plaintiff to support its cause of action have been adjudicated.
The district court entered decree and judgment in favor of plaintiff for the amount claimed in its petition.
Plaintiff company contracted with the defendant city to do some paving. Under the contract, plaintiff was to be paid by special assessment certificates, bearing interest at the rate of 6 per cent from the date of their issue. The work under the contract was completed on August 13, 1907; and on June 24, 1908, the defendant city accepted the work, and on that same day levied assessments and delivered assessment certificates to the plaintiff, dated June 24, 1908, and bearing interest at the rate of 6 per cent from and after that date. A large number of property owners appealed from the assessment, alleging, among other things, that the city council had not taken the proper jurisdictional steps to enable it to levy a valid assessment, and also that the contractor (this plaintiff) had not performed its contract so as to become entitled to payment for doing the work. On appeal of the property owners, the Polk County district court set the assessments aside, and from that decree an appeal was prosecuted to this court, which affirmed the decree of the lower court on the sole ground that the city of Des Moines had not taken the necessary jurisdictional steps to have acquired power and authority to levy the assessments. See Gilcrest & Co. v. City of Des Moines, 157 Iowa 525, 137 N.W. 1072. The special assessment certificates issued pursuant to the levy were thereby rendered invalid; but this court held that the city of Des Moines could lawfully take further proceedings leading to an assessment, by taking the necessary jurisdictional steps. Gilcrest & Co. v. City of Des Moines, supra.
Pursuant to the opinion of this court handed down on October 25, 1912, the city of Des Moines did, on the 31st day of December, 1913, reassess the property liable to assessment for the paving, with the exception of the Hurley property, and delivered to the Barber Asphalt Paving Company a new set of paving assessment certificates, dated December 13, 1913, and bearing interest at the rate of 6 per cent from that date.
The first count of plaintiff's petition is based on the failure of the city to furnish to defendant a valid certificate in the amount of $ 359.49 for paving in front of the Hurley property. The defendant city did not include in the second assessment the amount of interest on the contract price for the period of from June 24, 1908, the date of the original certificates, which were adjudged invalid, to December 31, 1913, when the second issue of certificates was made. The failure to include this interest is the basis of plaintiff's cause of action, alleged in the second count of its petition. The second assessments made and certificates issued were also involved in litigation growing out of the appeal of property owners, and were finally confirmed as valid by this court on the 12th day of March, 1917. In that litigation, the question of whether or not the contract had been performed was the issue, and it was determined favorably to the contractor. See Gilcrest & Co. v. City of Des Moines, (Iowa) 161 N.W. 645 (not officially reported).
It is undisputed, since determination in the second Gilcrest case, that the Barber Asphalt Paving Company performed its contract; and it is undisputed that it has never been paid the full amount due as the contract price. It is also undisputed that interest on the contract price from June 24, 1908, the date of the first assessment and issuance of the first certificates (which were held invalid by the decision of this court rendered October 25, 1912), to December 31, 1913, the date of the reassessment and of the second issue of certificates, was not included in the amount of the second assessment, and the contractor has not been paid that interest.
This suit was commenced August 30, 1917. In the first count of its petition, the plaintiff asked judgment for $ 359.49, together with interest at 6 per cent from June 24, 1908. The basis of this claim is the fact that the original Hurley assessment was invalid, and was not reassessed, and that the contractor, having performed its work under the contract, is now entitled to judgment for the amount of the Hurley certificate, with interest, as adjudicated in the Gilcrest case.
In the second count of this petition, the plaintiff asks judgment for an amount equal to 6 per cent on the amount of the contract price (less the amount of the Hurley certificate) for the period from June 24, 1908, to December 31, 1913, the last date being the date of the second assessment and of the issue of the second set of certificates. It is clear from the record that the plaintiff has not received, by certificates or otherwise, the amount of the Hurley assessment originally made, in the amount of $ 359.49. It also clearly appears that, by failing to take the proper steps, the city lost jurisdiction to levy an assessment against the Hurley property. In the Gilcrest case of 1912 (157 Iowa 525), concerning the assessment against the Hurley property, we said:
In the second Gilcrest case, wherein the decision was made on March 12, 1917, it was found that the Barber Asphalt Paving Company had performed its work according to its contract with the city; and that was all that was wanting to establish liability of the city for the amount of the Hurley assessment and interest thereon.
In making the second assessment, of December 31, 1913, the city failed to include in the assessment and the certificates issued in pursuance of the assessments an amount equal to interest at 6 per cent on the contract price: that is, the portion of the contract price not already received...
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