Boyer v. Kansas City

• Decision Date: 20 May 1918
• Docket Number: (No. 12883.)
• Citation: 205 S.W. 873
• Parties: BOYER v. KANSAS CITY.
• Court: Missouri Court of Appeals

205 S.W. 873

BOYER v. KANSAS CITY.

(No. 12883.)

Kansas City Court of Appeals. Missouri.

May 20, 1918.

Appeal from Circuit Court, Jackson County; Thomas B. Buckner, Judge.

"Not to be officially published."

Action by J. I. Boyer against the City of Kansas City. Judgment for plaintiff, and defendant appeals. Affirmed.

J. A. Harzfeld, Charles M. Blackmar, and A. F. Smith, all of Kansas City, for appellant. McVey & Freet, of Kansas City, for respondent.

TRIMBLE, J.

Plaintiff had a contract with defendant city, whereby he agreed to remove all garbage therein, except from hotels, restaurants, saloons, or places conducted for profit. The contract was for five years, commencing December 15, 1908, and plaintiff was to be paid $39,900 per year, in monthly installments of $3,325, due and payable at the end of each month. The contract required plaintiff to make two collections of garbage each week during the six months between November 1st and May 1st, and three collections per week the rest of the year. He was to maintain an office with two telephones in it, so that if his employés failed in their duties he could be easily reached with complaints, and he agreed that, as to any complaint received before 5 p. m. of any day, it would be taken care of on the following day. There was also a provision that, if he failed to fully comply with the provisions of the contract, the hospital and health board of the city could serve a written notice on him, and if he did not within three days after such notice of delinquency remedy the trouble the contract should, at the election of the board, become null.

On the last day of February, 1913, the board served such notice on him, and on March 1st he was refused his pay for the month just expired. He continued under his contract for three days, but, as the city refused to pay him, he ceased thereafter to act under the contract, not being able to continue without money. This suit was brought to recover said installment due for February and pro rata for the three days in March for which he was not paid. The answer, so far as material now, was a general denial. There was a verdict and judgment for plaintiff for the amount sued for, with interest.

It seems that plaintiff gave bond to the city for the faithful performance of his contract, and that after the contract was at an end, and prior to this suit, the city brought suit on said bond for the breach thereof. That case was tried before the court without a jury, and judgment was rendered in favor of the defendant therein, who is plaintiff here. That judgment contained nothing more than a general finding of the issues in favor of the defendant. It did not set out any specific facts on which the judgment was based. However, the trial judge in that case, without any request from either party, and over the objection and exception of the plaintiff therein, made a written memorandum, which is called a finding of facts and declaration of law, wherein it was stated that "there was a substantial failure of performance of his contract by defendant Boyer" (plaintiff here), but that by reason of certain other facts the judgment should be for defendant. This case was appealed to the Supreme Court, and the appeal was pending therein at the time the case at bar came on for trial. Defendant herein set up the so-called finding of fact, as to plaintiff Boyer's nonperformance of the contract, in the other suit, as res adjudicate and in bar of this suit. The trial court refused to so regard it, and this is the first and main contention raised by the defendant city. However, since the submission of the appeal herein to this court, the Supreme Court in the other case, to wit, No. 18836, Kansas City v. Boyer et al., 202 S. W. 1086, not yet officially reported, has held that the voluntary so-called finding of fact was not a statutory finding, as contemplated in section 1972, R. S. No. 1909, and that there was no valid finding of facts in that case, except a general finding of the issues in favor of defendant, Boyer. It logically follows from that ruling that the defendant's claim herein, that the judgment in the other case is res adjudieata and a bar to the prosecution of this, is untenable. The so-called finding of fact was not included in, nor was it a necessary support to, the judgment rendered. In fact, the judgment, being in favor of Boyer, could not be considered as a judicial declaration of the fact of nonperformance on his part. Nevins v. Coleman, 198 Mo. App. 252, 200 S. W. 445; 2 Black on Judgments (2d Ed.) § 687; 1 Freeman on Judgments (4th Ed.) § 271; 1 Van Fleet on Former Adjudication, p. 121. Only final determinations upon the merits can be considered...