City of Boonville ex rel. Cosgrove v. Rogers
| Decision Date | 01 April 1907 |
| Citation | 101 S.W. 1120,125 Mo.App. 142 |
| Parties | CITY OF BOONVILLE ex rel. JOHN COSGROVE, Appellant, v. JOHN F. ROGERS, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Cooper Circuit Court.--Hon. Samuel Davis, Special Judge.
AFFIRMED.
John Montgomery, Jr., John and J. W. Cosgrove for appellant.
(1) The first defense relied upon is not tenable. Where a taxbill is issued for an amount, a part of which is legal, and a part illegal, it can be enforced for the legal or just amount. St. Joseph ex rel. v. Wilshire, 47 Mo.App. 125; Neenan v. Smith, 60 Mo. 292; Bank v Arnoldia, 63 Mo. 229; Bank v. Nelson, 64 Mo 418; Farrar v. St. Louis, 80 Mo. 393; St. Joseph v. Denahar, 61 Mo.App. 317; Marionville ex rel. v Henson, 65 Mo.App. 405; Johnson v. Duer, 115 Mo. 379; Overall v. Ruenzi, 67 Mo. 207; Dickhaus v Olderheide, 22 Mo.App. 79.
W. F. Johnson for respondent.
(1) It has always been the law of this State that the trial issues must be within the paper issues. Fulkerson v. Thornton, 68 Mo. 468; Kenney v. Railroad, 70 Mo. 252; Melvin v. Railroad, 89 Mo.App. 318; Whitlock v. Appleby, 49 Mo.App. 295. (2) The city cannot enter into a contract for a district sewer in excess of the engineer's estimate. A contract in excess of such estimate is ab initio null and void, for a city is without jurisdiction to so contract. No recovery can be had on taxbills issued thereon, in whole or in part. DeSoto v. Shoeman, 100 Mo.App. 326; R. S. 1899, Clause 8, section 5858; Kirksville v. Coleman, 103 Mo.App. 220. (3) It is not claimed that the contract is ambiguous, but if it were the interpretation of the parties would control. St. Louis v. Gas Light Co., 155 Mo. 1; Woolen Co. v. Wollman, 87 Mo.App. 658; Craig v. Sight, 91 Mo.App. 242; Laing v. Holmes, 98 Mo.App. 231. (4) The city had no jurisdiction to contract in excess of the estimate. (5) Plaintiff offered to knock off only $ 16.91 for "incidental expenses." The contractor had received, and he, or his assignee, had collected all the other taxbills, amounting to $ 313.28. He now asks judgment for a further sum of $ 51.46--making a total asked by him of $ 364.74, in fulfillment of a contract he claims to be for $ 288. (6) The city engineer, or other proper officer, must first file an estimate as a condition precedent before the city can enter into a contract. A failure to file such an estimate renders the contract null and void, and the taxbill issued thereon invalid. R. S. 1899, clause 8, sec. 5858; DeSoto v. Showman, 100 Mo.App. 323; Independence v. Briggs, 58 Mo.App. 241; Marshall v. Rainy, 78 Mo.App. 323; Wheeler v. Poplar Bluff, 149 Mo. 36; Hill v. Springley, 159 Mo. 48.
This suit is upon a special taxbill issued by the city of Boonville to Thomas Hogan for building a district sewer. John Cosgrove, to whose use the suit is brought, is the assignee and owner of the taxbill.
The petition alleges substantially, omitting the usual and formal parts, that there had been legally established in said city, a city of the third class, a general sewer system, and sets out the passage of various ordinances establishing sewer district No. 11, the passage of a resolution declaring it necessary to construct the sewer in said district for sanitary purposes, the necessary publication after an estimate of the cost of building the sewer, which was duly approved and adopted by the city council, the advertising for bids, the awarding of the contract for construction to Thomas Hogan, the lowest bidder, the making of the contract, the acceptance of the work by the city, the passage of an ordinance assessing the tax against each piece of property subject to tax for construction, and the issuing of the taxbill in question, its delivery to the contractor, and its assignment to John Cosgrove. The petition alleged the amount of the taxbill issued against defendant's property to be $ 68.37 and that the contract price with Hogan for the whole cost of the work was $ 381.65.
The answer admits that the city entered into a contract with Hogan to do the work for the sum of $ 381.65, he being the lowest bidder, and that the proportionate cost of construction levied against defendant's lot was $ 68.37; but denies the legal authority of the city to enter into the contract and alleges that the contract and taxbill are void for several reasons: First, that the only estimate of costs filed with the city council was "not to exceed three hundred dollars" and that the city entered into a contract with Hogan in excess of that estimate, viz., for the sum of $ 381.65. And, "That Samuel W. Ravenel was not an officer of the city and had no legal authority to file the estimate of costs, and that no estimate was filed 'by the city engineer or other proper officer.'"
The following admission was made by defendant: It was further admitted that Samuel W. Ravenel was appointed city engineer by the mayor of the city in 1896 and gave the required bond, but there is no record that he ever took the oath of office. It was shown that he has continuously exercised the duties of his office since his appointment, at which time he was a resident of Boonville, but that since 1897 he has resided in Howard county, Missouri.
The plaintiff offered the bid of Hogan for the contract at and for the price of two hundred and eighty-eight dollars. Defendant objected to it because the petition alleged that the contract was awarded to him at the price of $ 381.65, and that the answer so admitted, and the further objection that the bid had nothing to do with the contract price. The objections were overruled and paper read.
Plaintiff then offered in evidence the contract for the work for the sum of two hundred and eighty-eight dollars. Defendant objected for the reason first specified in his objection to the admission of the bid for the work. The objection was overruled and the contract read as evidence.
Plaintiff next offered in evidence the disbursements of incidental expenses incurred by the city in sewer district No. 11 as follows:
Then plaintiff asked and was granted leave to amend his petition by alleging that the cost price of the sewer was two hundred and eighty-eight dollars instead of three hundred and eighty-one dollars, as originally alleged and that the amount due from defendant on the taxbill for his proportional share of the cost of construction was $ 51.46 instead of $ 68.37.
It was admitted that all the taxbills issued for the work had been paid except the one in controversy and that the total amount paid by the other property-owners was $ 313.28. Hogan, the contractor, testified that he paid the city $ 93.65, the cost of engineering, etc., before it made out and delivered to him the taxbills. Other facts will be disclosed in the progress of the opinion.
The plaintiff asked the court to declare the law as follows "Although the court shall believe from the admission of the parties, and...
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