Casteel v. Dearmont

Decision Date07 November 1927
Docket NumberNo. 15770.,15770.
Citation299 S.W. 816
PartiesCASTEEL v. DEARMONT et al.
CourtMissouri Court of Appeals

Action by Walter L. Casteel against Mollie C. Dearmont and husband. Judgment for defendants, and plaintiff brings error. Affirmed.

A. M. Tibbels, of Mound City, and Frank Petree, of Oregon, Mo., for plaintiff in error.

J. B. Dearmont, of Mound City, and Culver, Phillip & Voorhees, of St. Joseph, for defendants in error.

ARNOLD, J.

This is an action by the assignee to recover on three special tax bills issued by the board of aldermen of the city of Mound City, Holt county, Mo., against iota 2 and 3 in block 27 in said city for their proportion of the cost of grading, paving, and guttering Seventh street in said city.

The facts of record are that the lots in question are contiguous, border on Seventh street, and are owned by defendants Mollie C. Dearmont and her husband, J. B. Dearmont. On June 14, 1919, a petition was presented to the board of aldermen of said city for the grading, curbing, and paving of Seventh street in said city from the west line of Mill street to the west end of Seventh street. On June 30, 1919, a bid for the engineering work by the firm of Leslie & Barnes was accepted. At an adjourned meeting on July 7, 1919, the council met and passed an ordinance, employed an engineer, and then, adjourned to July 18, 1919. On said last-named date, all members being present, the council passed Special Grade Ordinance No. 25, establishing the grade on Seventh street, and Special Paving Ordinance No. 26, approving plans, specifications, and profiles for the paving of Seventh street from the west line of Mill street to a point 705.53 feet west of the west line of Railroad street.

There was a resolution, denominated Paving Resolution F, passed at the same time, declaring necessary the grading, paving, and curbing of Seventh street from the west line of Mill street to a point 705.53 feet west of the west line of Railroad street; and providing for the width of the paving on the individual blocks bordering thereon, and other details not involved herein. Resolution F also provided that the said improvement should be made by bringing said street to the grade established by Special Grade Ordinance No. 25. The said resolution F also provided that said pavement should consist of Portland cement concrete 5 inches in finished thickness at the curb and from 8 to 10 inches at the center of the roadway. Said resolution also provides that, as the general revenue of the city is not in a condition to warrant an expenditure therefrom to bring said street to the established grade, the cost thereof should be included in the cost of paving; that the cost of said work, including the cost of bringing the said street to the established grade, should be levied as a special assessment upon all lots and pieces of ground upon either side of said street abutting thereon, as provided by law, and special tax bills bearing interest at the rate of 8 per cent. per annum after 30 days from date of issue, evidencing such assessment, should be issued to the contractor in payment for said work.

On August 13, 1919, Special Paving Ordinance No. 30 was passed, providing for the grading, paving, and curbing of Seventh street, in accordance with the provisions of said resolution F. Thereafter on August 22, the engineer's estimate was approved by the board of aldermen, and on the same day the bid of the Casteel Engineering Company was approved and a contract entered into which was ratified September 1, 1919. This contract provided for the beginning and completion of the work as follows:

"The work embraced in this contract shall be begun within 10 days after this contract binds and takes effect, and shall be prosecuted regularly and uninterruptedly thereafter with such force as to insure its full completion within 60 days from the date of its award; the time of beginning, rate of progress, and time of completion being essential conditions of this contract."

The contract also contained the following provision:

"And the said parties of the second part hereby further agree with the city of Mound City that, if the work embraced in this contract be not begun within 10 days after this contract binds and takes effect, and prosecuted regularly and uninterruptedly thereafter, in accordance with the terms and provisions thereof (unless the board of aldermen shall direct otherwise in writing) with such force as to secure its full completion within 60 days, said time to begin with the award of the contract, they will pay the city of Mound City the sum of $25 per day for each and every day beyond the day set for the completion of the work under the terms of this contract as liquidated damages for such breach of contract."

On December 15, 1919, an ordinance was passed extending the time for the completion of the work from November 1, 1919, to May 15, 1920, and on May 7, 1920, a further extension of 30 days was granted. On June 15 the time was further extended to June 30, 1920, and on July 2 a further extension was asked and refused. The record is silent as to the date of the actual completion of the work, but it appears that on August 9 the city attorney was instructed to prepare an ordinance accepting the pavement, and this ordinance, known as Special Paving Ordinance No. 92, was passed by the board of aldermen on August 13, 1920. Section 1 thereof provides for apportionment of the costs of the improvement; section 2 levies and assesses against each abutting lot its pro rata share as a special tax. The following assessment was levied against the property in question:

"Description: Lots 2 and 3, block 27. Intersection $288.03. Tax levied as follows: Abutting paving, $697.46; grading, $98.04; total assessment, $1,225.62."

Section 3 of the ordinance is as follows:

"It appearing from the report of the city engineer that the curb and pavement constructed and laid on that portion of Seventh street lying west of Railroad street has not been constructed according to the plans and specifications and contract therefor, and that said curb and pavement is now in poor condition, the special tax above provided for and levied against the abutting property on that portion of Seventh street is levied with the understanding and agreement between the said Casteel Engineering & Construction Company and the said city of Mound City that the tax bills therefor are not to be delivered to the said Casteel Engineering & Construction Company or to its assigns until such time as the said Casteel Engineering & Construction Company shall have made settlement with the owners of property abutting on that portion of said street, on account of the defects existing in said pavement, which settlement must be agreed upon by the said Casteel Engineering & Construction Company and said abutting property owners, reduced to writing, and filed with the city clerk before the said Casteel Engineering Company or its assigns shall be entitled to receive said tax bills.

"It is further ordered that the tax bills covering that portion of Seventh street from a point 80 feet west of the west line of Mound street shall not be delivered to the said Casteel Engineering & Construction Company until the said Casteel Engineering & Construction Company has given to said city a bond in the sum of $2,000 for the maintenance of that portion of said curb and pavement in good condition for a period of three years. This requirement is made on account of the fact that rejected material was used by the contractor in the construction of the improvement on that portion of said street.

"When the maintenance bond above provided has been duly executed, the city clerk is hereby ordered and directed to issue...

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