City of Bellefontaine Neighbors v. J. J. Kelley Realty & Bldg. Co.

• Decision Date: 27 October 1970
• Docket Number: No. 33408,33408
• Citation: 460 S.W.2d 298
• Parties: CITY OF BELLEFONTAINE NEIGHBORS, a municipal corporation, Plaintiff-Respondent, v. J. J. KELLEY REALTY AND BUILDING COMPANY, a corporation, and National SuretyCompany, a corporation, Defendants-Appellants.
• Court: Missouri Court of Appeals

Page 298

460 S.W.2d 298

CITY OF BELLEFONTAINE NEIGHBORS, a municipal corporation Plaintiff-Respondent, v. J. J. KELLEY REALTY AND BUILDING COMPANY, a corporation, and National SuretyCompany, a corporation Defendants-Appellants.

No. 33408.

St. Louis Court of Appeals, Missouri.

Oct. 27, 1970.

Rehearing Denied Nov. 30, 1970.

Ziercher, Tzinberg, Human & Michenfelder, J. William Newbold, Clayton, for defendants-appellants.

Padberg, Raack, McSweeney & Slater, Godfrey Padberg, R. J. Slater, St. Louis, for plaintiff-respondent.

SMITH, Commissioner.

This matter reaches us on appeal from a judgment in a court-tried case in the amount of $4107.50 in favor of plaintiff, Bellefontaine Neighbors, a city of the fourth class, against defendant J. J. Kelley Realty and Building Company as principal, and National Surety Company as Surety. ¹

The cause of action of the City was based upon a contract between it and Kelley under which Kelley undertook the grading and paving of Toelle Lane, a public street in the City, in exchange for City's approval of a subdivision plat of Kelley and the issuance of building permits by the City.

In April 1956, Kelley was seeking to subdivide and develop a tract of land owned by it in the City to be known as Bella Hills Subdivision. The eastern edge of Bella Hills fronted on Toelle Lane from Bella Hills' southern boundary, a distance of 775 feet. From that southern boundary to Shepley Drive was approximately 1100 feet. Shepley Drive furnished the only entry to the subdivision in the City. ² By its contract Kelley undertook to survey, grade and pave Toelle Lane as a 36 foot roadway from the southern boundary of Bella Hills to Shepley Drive. On the same day, and after execution of the contract the Board of Aldermen of the City, by ordinance, approved the subdivision plat, which plat was recorded the next day in the office of the Recorder of Deeds of St. Louis County.

Kelley commenced development of the subdivision and began improvement of Toelle Lane in March 1957, (after approval of the engineering plans by the City) and continued such work in April 1957. On April 19, 1957 the mayor of the City, under his health and police powers, closed to vehicular traffic a railroad overpass bridge on Shepley Drive between Toelle Lane and Bellefontaine Road, and Kelley did no more work on Toelle Lane after that date. The overpass remained closed until reconstructed in 1963, but in 1959 the City completed the paving of Toelle Lane, paying for the paving from its general revenue funds. By its amended petition the City seeks to recover from defendants the expense incurred by it in completing the paving called for under the contract with Kelley. Kelley made no claim of impossibility of performance but defended in the trial court and here solely on the basis that the City had no authority to require Kelley to pave the road as a condition to the approval of the plat and the issuance of building permits, and that therefore the contract was without consideration and unenforceable.

The City also sought recovery against the Surety on a subdivider's bond executed on April 16, 1956. The pertinent provisions of the bond read as follows:

'WHEREAS under the provisions of Ordinance #28 of the City of Bellefontaine Neighbors said J. J. KELLEY REALTY AND BUILDING COMPANY IS required to furnish a bond in the sum of SEVENTY FIVE THOUSAND AND NO/100 to guarantee compliance with the provisions of said Ordinance #28 pertaining to the construction of Streets, Curbs, Sewers, Lighting, Water Mains, Fire Hydrants and Sidewalks within the aforesaid Sub-Division.

'NOW, THEREFORE, if said Principal J. J. KELLEY REALTY &amp BUILDING COMPANY shall well and truly comply with said Ordance (sic) #28 and all other Ordinances of the City of Bellefontaine Neighbors apertaining (sic) thereto, with respect to the proper installation of Streets, Curbs, Sewers, Lighting, Water Mains, Fire Hydrants and Sidewalks within the aforesaid Sub-Division at the location of said Bella Hills Sub-Division, then this obligation shall be void; otherwise to remain in full force and effect.'

Surety, in addition to the defenses raised by Kelley, contends that it liability as found by the trial court is predicated on the contract between Kelley and the City, and such contract is not referred to in the bond, so a finding of liability as to the Surety would violate the parol evidence rule.

Ordinance 28 is the City's zoning ordinance. It contains Article XV prescribing subdivision regulations. The resolution of the dispute here, in the final analysis, turns on whether the City was empowered to enact Article XV of the ordinance at the time of its adoption in 1951.

The question of liability was submitted to the trial court on a stipulation of facts in April 1964. In June 1967 the court entered its findings of fact and conclusions of law which essentially were that Ordinance 28 was valid, the contract was valid and enforceable to the extent it required Kelley to pave the roadway abutting its property to the conterline of the street, and that Surety was liable on its bond for the cost of that much paving. Hearing was thereafter held on the amount of damages sustained by the City as a result of bringing to grade and paving the 775 feet abutting Kelley's property to the centerline of Toelle Lane. On July 9, 1968 judgment was entered against both Kelley and Surety for $4107.50. Defendants do not challenge the amount of damages assessed but challenge here only the determination of liability. The City has not appealed so we are not donfronted directly with the correctness of the trial court's determination of partial enforceability.

Defendants' major contention is that Kelley had complied with all valid requirements to obtain the building permits and the City had the legal obligation to issue them. They then assert the well recognized rule that a promise to do that which one is already legally obligated to do cannot serve as consideration for a contract. In re Wood's Estate, 288 Mo. 588, 232 S.W. 671(4, 5); Lingenfelder v. Wainwright Brewery Co., 103 Mo. 578, 15 S.W. 844. Weber Implement & Automobile Co. v. Goswell, Mo.App., 299 S.W. 152(1, 2). We have no quarrel with the proposition advanced, if in fact the City has only promised to do that which it was legally obligated to do.

We turn first to the contract to determine what consideration, valid or invalid, the City gave. Two paragraphs of the contract are relevant to that question.

'WHEREAS, Builder is the owner of a tract of land located within the corporate limits of City and is desirous of subdividing the same and securing permits to erect buildings thereupon and City is willing to grant said building permits upon certain terms and conditions, it is therefore agreed by and between the parties hereto as follows:

6. In consideration of the execution of this contract and the covenants expressed herein, the City will permit the construction of 70 houses on Builder's property, known as BELLA HILLS SUBDIVISION, subject to completion of the improvements required herein and subdivision improvements required by the Ordinances of the City and set forth on the development plat of said BELLA HILLS SUBDIVISION.'

We conclude that the City's obligations under this contract included at least two distinct features, i.e. 1) issuance of building permits and 2) approval of Kelley's plat and authorization for the subdividing of the land in question. Under Chapter 445 RSMo. 1949, such approval was required before the plat of the subdivision could be recorded with the recorder of deeds, and recording was a condition precedent to offering for sale or selling any lot in the subdivision. The provisions of Chapter 445 will be discussed more fully hereafter, but for present purposes suffice it to say that the City agreed to give its approval to the subdividing of the land, an approval required by statute before subdivision could proceed.

The contract provided that the City would permit construction of 70 houses on builder's property. This contemplated more than the mere issuance of building permits, it also required City approval of the plat. Without city approval there could be no subdivision of the land and no construction or sale of houses in the subdivision.

The City's subdivision regulations (Article XV of its Zoning Code) require that no plat shall be recorded with the Recorder of Deeds until approved by the Zoning Commission and the City. Under Section 5 of Article XV certain improvements are required to be completed before final approval of the plat by the City. These include permanent boundary markers, street improvements, sidewalks, water lines, sewers, and streets. The street improvements required are that 'All street rights-of-way shall be graded full width and the roadway improved by surfacing.'

That section further provides that: 'In lieu of actual completion of such improvements, the subdivider may file with the Zoning Commission a surety bond to secure to the City...