Barton County Rock Asphalt Co. v. City of Fayette
| Decision Date | 03 November 1941 |
| Citation | 155 S.W.2d 771,236 Mo.App. 505 |
| Parties | BARTON COUNTY ROCK ASPHALT COMPANY, A CORPORATION, APPELLANT, v. THE CITY OF FAYETTE, MISSOURI, A MUNICIPAL CORPORATION, RESPONDENT |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Chariton County.--Hon. Paul Van Osdol Judge.
AFFIRMED.
Judgment affirmed.
John D Taylor and Combs & Combs for appellant.
(1) A city of the fourth class has authority under the statutes of the State of Missouri to repair its streets and pay for same out of general revenue. Secs. 7047, 7052, 7060, 7062, 7161 R. S. Mo. 1929; 19 R. C. L., p. 711, sec. 21; p. 781, sec. 86; 28 Cyc., p. 969, sec. F; Laws of 1939, p. 848, sec. 1. (2) Mayor of respondent city was authorized under the law to make agreement for the purchase of material. Haskins v. City of DeSoto, 35 S.W.2d 964, 969; Aquamsi Land Co. v. City of Cape Girardeau (Mo.), 142 S.W.2d 332, 338. (3) Parole evidence was admissible for the purpose of supplying omitted facts omitted from the records of a municipal corporation, and in support of the incomplete minutes as made by the city clerk. 2 McQuillin, Municipal Corporations (2 Ed., Rev.), p. 640, sec. 654; 2 McQuillin, Municipal Corporations (2 Ed., Rev.), p. 641, sec. 655; State ex rel. McMillian v. Guinn, 309 Mo. 291, 300; Peter v. Kaufmann, 38 S.W.2d 1062, 1065; Myering v. Miller, 51 S.W.2d 65, 68; State ex inf. Mansur v. McKown, 315 Mo. 1336, 1348; Bonsack & Pearce, Inc., v. School District of Marceline, 226 Mo.App. 1238, 1243. (4) Order agreement signed by mayor and representative of appellant was contract in writing as required by Sections 2962 and 2693 of the Revised Statutes of Missouri for 1929. School District of St. Joseph v. Security Bank (Mo.), 26 S.W.2d 785, 792; Town of Canton v. Bank of Lewis County (Mo.), 92 S.W.2d 595, 598. (5) The act of respondent city in purchasing the material from appellant was within its corporate powers, and by accepting the material and receiving the benefits therefrom under the agreement with appellant, respondent is now estopped to deny its indebtedness for the same. 3 McQuillin, Municipal Corporations (2 Ed.), pp. 956-961, sec. 1357; Edwards v. Kirkwood, 147 Mo.App. 599, 614, 615, 616, 617; Wilson v. Drainage District, 176 Mo.App. 470, 496; Shueler v. City of Kirkwood, 191 Mo.App. 575, 584; Bonsack & Pearce, Inc., v. School District, 226 Mo.App. 1238, 1243; Simpson v. Stoddard County, 173 Mo. 421, 446; County of Cole v. Trust Co., 302 Mo. 222, 240; 110 A. L. R., p. 161. (6) Decree of the Circuit Court of Howard County, Missouri, in case of Bedford et al. v. City of Fayette et al. , is not res adjudicata to the issues of appellant's case here. 15 R. C. L., p. 1013, sec. 487 (see Footnotes 12, 13, 14); City of Springfield v. Plummer, 89 Mo.App. 515, 531; Kelly v. City of Cape Girardeau, 260 S.W. 801, 803; Scheer v. Trust Co., 330 Mo. 149, 168, 169; Mo. District Tel. Co. v. Southwestern Bell Tel. Co., 336 Mo. 453, 460, 461; Kirk, Administrator, v. Met. Life Ins. Co., 225 Mo.App. 756, 759. (7) The trial court erred in admitting in evidence respondent's Exhibit 4 over the objection of appellant, the same not having been properly identified, and being incompetent and immaterial. Brown v. Massey, 138 Mo. 519; Royle Mining Co. v. Fidelity & Casualty Co. of N. Y., 161 Mo.App. 185, 197; United Factories v. Brigham, 117 S.W.2d 662, 665; State v. Hostetter, 126 S.W.2d 1173, l. c. 1177. (8) The court erred in sustaining respondent's demurrer to the evidence and directing a verdict for respondent, defendant below. Young v. Wheelock, 64 S.W.2d 950, 954; Wheeler v. Breeding, 109 S.W.2d 1241; Tate v. Mo. K. T. Ry. Co., 93 S.W.2d 873, 874.
J. A. Collet and A. W. Walker for respondent.
(1) The resolutions introduced by plaintiff constitute no authority for the mayor to purchase street surfacing material. Aquamsi Land Co. v. City of Cape Girardeau, 142 S.W.2d 332, 338. (2) Defendant, as a city of the fourth class, had no authority to pay for the character of improvement involved in this litigation except by special tax bills issued against abutting property. This is true even though this improvement be deemed as repairs to the streets. Sections 7050, 7051 and 7060, R. S. 1929. If the cost of the improvement to be made is not to be paid for by special tax bills against abutting property, the only other authority the city had for making such an improvement was to procure a bond issue to provide funds with which to pay for such improvements. Section 7052, R. S. 1929. (3) If the improvement made with the materials furnished by plaintiff for which this suit was instituted, be deemed a repair job, then no formality was required to authorize the repairing of such street, but the cost thereof must be paid for by special assessments levied against the abutting property. Section 7060, R. S. 1929. And where whole street is resurfaced preliminary ordinance and publication are necessary. Noel v. Lees Summit, 166 Mo.App. 114. (4) Parol evidence cannot be admitted for the purpose of varying or contradicting a written instrument and is admissible only, in relation to written evidence, for the purpose of explaining an uncertainty or ambiguity in the written instrument. State v. Guinn, 309 Mo. 291, 300, 274 S.W. 456, 457. (5) The letter introduced in evidence by defendant, identified as Exhibit 4, was properly received. The telegram from one of the same parties signing the letter had already been received in evidence without objection; and the telegram referred specifically to this letter and thereby made the letter part of the message transmitted by the telegram. (6) The demurrer to plaintiff's evidence was properly sustained. (a) Plaintiff failed to show any authority in the mayor to make the purchase he undertook to make. (b) The character of improvement for which plaintiff furnished materials with knowledge of the use to which materials were to be made was such as could only be paid for by special tax bills against abutting property. (c) Plaintiff admitted having received notice by letter and telegram from certain of the city aldermen that the contract entered into by plaintiff with the mayor of city was illegal and not enforceable, before any of the material was furnished. Therefore the doctrine of estoppel could not apply.
Barton County Rock Asphalt Company, a corporation, plaintiff, sued the City of Fayette, Missouri, a municipal corporation, defendant, for the sum of $ 3933.81, claimed to be due on account of rock asphalt, a street paving and repairing material, shipped to defendant. The trial court instructed a verdict for defendant and plaintiff appeals. We shall refer to the parties as plaintiff and defendant, in the order mentioned above.
The record discloses that defendant's city council, with the mayor in attendance, met in regular session on July 5, 1938, and adopted a resolution which authorized the mayor to solicit the aid of the Federal Government, through its WPA or its FWA agencies in improving streets located in said city; that, thereafter, a WPA project providing for improvement of streets by grading and surfacing same with rock asphalt was before the mayor and council of defendant and was, by that body, considered at a meeting held July 25, 1938; that an ordinance was duly adopted at said meeting on July 25, providing that if said project so considered should be approved and constructed by the Federal Works Progress Administration the city would, for a period of ten years thereafter, maintain said streets so constructed; that said proposal or project was in writing and purported to itemize the cost thereof; that there appeared therein figures indicating that material and supplies to be used in said project would be provided through funds to be furnished by "Sponsor," defendant, and by the Federal Government; and that, attached to said proposed project, and forming a part thereof, was "Sponsoring Certificate," bearing the following at the conclusion thereof:
There was introduced in evidence, over objection of defendant, two written instruments dated September 18, 1938, which were orders to plaintiff to ship 482 tons of rock asphalt to defendant, freight prepaid, at a price of $ 6.25 per ton plus freight and sales tax. Said instruments were signed:
The evidence tended to prove that the material was delivered and used on certain gravelled and rocked streets of defendant; that holes therein caused by weather and traffic were filled, after which said streets were completely resurfaced with said material; that the work on said streets was done by Federally paid labor, under the above mentioned WPA project; that said material was satisfactory for the purpose for which it was used; that the completed work was satisfactory; that the price charged for the material was reasonable; that plaintiff paid the freight on the material, amounting to more than $ 800, and will be compelled to pay sales tax when the sale price is collected; that demand had been made for payment of the account and payment had been refused; and that other materials used in said construction had been paid for by the city.
The only evidence offered by defendant was a telegram and a letter, both delivered to plaintiff before shipment of the merchandise was made. The telegram is in words as follows:
The letter advised plaintiff that the signors, Vodra Phillips, R L. Burnham and B. I....
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