Bridewell v. Cockerell

• Decision Date: 19 November 1906
• Citation: 122 Mo. App. 196,99 S.W. 22
• Parties: BRIDEWELL et al. v. COCKERELL et al.
• Court: Missouri Court of Appeals

99 S.W. 22

122 Mo. App. 196

BRIDEWELL et al. v. COCKERELL et al.

Kansas City Court of Appeals. Missouri.

November 19, 1906.

Rehearing Denied January 14, 1907.

1. APPEAL—REVIEW—QUESTIONS NOT RAISED IN TRIAL COURT.

The court on appeal from a judgment refusing to declare tax bills for a street improvement void cannot consider a ground not relied on in the trial court as a ground for the invalidity of the bills.

2. MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS —RESOLUTIONS—STATUTES.

A resolution for a street improvement, which specifies the material for the pavement to be laid, and which declares that the paving is to be done in accordance with plans and specifications to be furnished by the city engineer, is sufficient within Laws 1901, p. 65, which does not require that the plans and specifications shall be on file when the resolution for an improvement is passed, but only at the time of the letting of the contract therefor, especially where the evidence shows that the plans and specifications were accessible to the property owners in time for inspection and protest, though they were not marked "filed."

3. SAME.

The plans and specifications for a street improvement were under consideration by the city council seven days before the passage of an ordinance providing for the improvement, but they were not marked "filed and approved" until that date. Thereafter a contract for the construction of the improvement was entered into. Held that, as the statute does not require that the plans and specifications shall be on file any specified number of days before the making of the contract for the improvement, the failure to mark them filed did not affect the validity of tax bills issued for the improvement.

4. SAME—PERFORMANCE OF CONTRACT—RECOVERY.

A resolution calling for the improvement of an entire street, including the space between the tracks of a street railway in the street and one foot on the outside of the rails of each track, provided that the railway company should pay that part of the cost of the improvement. The contract for that part of the work was done under a separate contract. Held, that the contractor performing the work according to the plans and specifications was entitled to recover, though the portion of the street the company was obliged to improve was not improved in accordance therewith.

5. SAME — TIME FOR CONSTRUCTION OF IMPROVEMENT —EXTENSION BY CITY AUTHORITIES.

A contract for a street improvement authorized the city council to prolong the time for the completion of the work for good cause. After the contractor had a part of his material on the ground the weather became cold and so continued for some time, and the city authorities requested the contractor to postpone the work during the cold weather. The council by ordinance at different times prolonged the time for the completion of the work, without assigning any cause for so doing. Held, that it would be presumed that the prolonging of the time for the completion of the work was on account of the cold weather and within the authority of the council to extend the time for the completion thereof.

6. SAME.

A contract for a street improvement provided that the work should be completed within a specified time, and authorized the council to extend the time for good cause. The contractor commenced work within the time fixed by the contract and was willing to go on and complete it, but because of the bad weather work was suspended at the request of the city officials, and the council passed various ordinances from time to time extending the time for the completon of the work for the purpose of enabling the contractor to do the work in a proper manner. Held, that the postponement of the time for the completion of the work did not defeat the contractor's right to recover therefor.

Appeal from Circuit Court, Vernon County; L. W. Shafer, Judge.

Action by W. L. Bridewell and another against A. B. Cockerell and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

M. T. January, for appellants. Scott & Bowker, for respondents.

BROADDUS, P. J.

This suit is to have certain tax bills assessed against the property of the plaintiffs for street improvement declared void. The defendants are sued as the holders of said tax bills.

It is alleged in the petition: That on the 25th day of August, 1903, the city of Nevada passed an ordinance to the effect that it deemed it necessary to improve Cherry street, in said city, from the west line of the Missouri, Kansas & Texas Railway Company's right of way to the center of Ash street, by paving the same with vitrified brick, in accordance with plans and specifications to be furnished by the city engineer and approved by the city council, the improvement to be made from curb to curb on each side of the street, and on a line therewith to the crossings north and south of its intersections with other streets, and the cost of the work assessed against the abutting property owners as provided by law, except all that part of the street between the rails of the street railway and one foot on the outside of each side thereof, which shall be paid for by the street railway company. The resolution declared that the work and improvements were necessary, and ordered the clerk to publish the resolution, as the law directs. That the resolution was duly published in a daily paper from August 26, 1903, to September 1, 1903. That the plans and specifications for the improvement were furnished by the city engineer and approved by the council September the 8th following. That on the latter date the council passed Ordinance No. 489, providing for the paving of Cherry street, and providing, among other things, that said street be paved with vitrified brick according to plans and specifications set out in the ordinance within the boundary specified in the resolution, and providing that the street railway pave, as also provided in the resolution, at the same time and the same way as the balance of the street was to be paved. That said Ordinance 489 further provided that the contractor should begin work within 30 days from date of contract and go on uninterruptedly, and the work be completed within 3 months after beginning, the contractor to suffer a penalty of $10 per day over the time fixed the work should remain unfinished, provided, however, the council may, if they see fit, for good cause, extend the time for completion of said work by ordinance duly passed. That one S. A. Drake's bid for the work was accepted by the council, and that he entered into a contract with the city on the 3d day of October, 1903, to complete the work within four months, provided the city should do the necessary grading to bring the surface of the street 10 inches below grade to receive the concrete, sand, and brick. That the city very soon after said contract was made excavated a section of the street preparatory for the work, but that the contractor failed to begin the work until March, 1904, and finished August the 3d of that year, 10 months after the making of the contract. That on January 19, 1904, the council passed Ordinance 495, extending the time of the contractor for completing the work to June the 1st, and on May 31st passed Ordinance 508, extending the time to July 1st, and on June 28th passed Ordinance 516, extending the time to July the 19th, and the same day passed an ordinance extending the time to August 4, 1904. That on said last-named date the council passed ordinance, on receiving the...