City of Boonville v. Stephens

• Decision Date: 18 June 1906
• Court: Missouri Court of Appeals
• Parties: CITY OF BOONVILLE ex rel. COSGROVE v. STEPHENS.<SMALL><SUP>*</SUP></SMALL>

95 S.W. 314

CITY OF BOONVILLE ex rel. COSGROVE v. STEPHENS.^*

Kansas City Court of Appeals. Missouri.

June 18, 1906.

1. MUNICIPAL CORPORATIONS — STREET IMPROVEMENTS —ORDINANCE—CONTRACT—VARIANCE.

A resolution for the pavement of a street provided that the first course should be "local hard brick," laid on their flat side longitudinal with the street, to be rolled once with "the city roller." At the time the resolution was passed the city had but one roller, which weighed seven tons, but afterwards, and before the contract was let, the city purchased a small roller, and the bidders were informed that the first layer of brick would only be required to be rolled with the latter. The contract provided that the contractor should cause the first course of brick and the sand thereon to be rolled by a roller designated by the city engineer and furnished by the city, and the second or last course of brick should be rolled with the city's seven-ton roller. Held, that the contract did not conform to the resolution authorizing the pavement, and hence tax bills therefor were unenforceable, though the bidders understood the matter, and the rolling done accomplished as satisfactory results as would have been attained with the larger one.

2. SAME—CITY ENGINEER'S ESTIMATE—STATUTES —MANDATORY PROVISIONS.

Rev. St. 1899, § 5858, subd. 8, declaring that before a city council shall make any contract for the paving of a street, an estimate of the cost thereof shall be made by the city engineer or other proper officer and submitted to the council, and that no contract shall be made for the work or improvements for a price exceeding such estimate, is mandatory.

3. SAME—ESTIMATE—SUFFICIENCY.

A city engineer's estimate of the cost of paving, that the work "should be done at a cost not to exceed $1.47 per square yard," was indefinite, and not a compliance with Rev. St. 1899, § 5858, subd. 8, requiring an engineer's estimate of the cost before the letting of a contract for the paving of a street.

Appeal from Circuit Court, Cooper County; Samuel Davis, Judge.

Action by the city of Boonville, on the relation of John Cosgrove, against W. Speed Stephens. From a judgment in favor of plaintiff, defendant appeals. Reversed.

W. M. Williams, for appellant. John Montgomery, Jr., and John & J. W. Cosgrove, for respondent.

ELLISON, J.

This is an action on a special tax bill issued against the property of defendant for paving one of the streets of the city of Boonville, a city of the third class as classified by statute. The plaintiff is assignee of the bill, and he recovered judgment in the circuit court.

On the 20th of June, 1899, the council of such city passed a resolution declaring it to be necessary to pave a part of Main street with brick, the first course with "local hard brick" and the second, or top course, with "vitrified brick." Specifications for the paving were written and placed in the city clerk's office. These specified that, "On this bed of sand shall be laid one course of local hard brick, laid on their flat side longitudinally with the street. This course of brick shall then be rolled once with the city roller. After it has been thus rolled, it shall be inspected by the superintendent in charge, and all broken or crushed brick shall be removed by the contractor and replaced with good brick tamped to their place. On this course, shall be placed sufficient sand so that after the voids and joints of the flat layer of bricks have been thoroughly filled, the sand being well swept in and manipulated, there shall remain a cushion of sand one inch thick, showing a uniform and even bearing surface. On this cushion of sand shall then be placed the wearing course of brick, which shall be a vitrified brick * * *. This course of brick shall be laid on their edges and crossways to the street, well jammed up against each other. On this course there shall be put sufficient sand, so that after it is thoroughly swept in, all voids and joints will be filled, thus rendering the street surface one solid mass. This course shall also be rolled with the city roller and then inspected by the city engineer or the superintendent in charge, and all cracked or broken bricks shall be removed and replaced with new bricks by the contractor." An estimate of the cost was ordered and submitted to the council. An ordinance was passed directing the paving to be done in the manner provided and designated by the specifications, they being adopted as a part of the ordinance. An advertisement was then had inviting competitive bids for such paving to be done as set forth in the specifications. Bids were received and the contract awarded to plaintiff's assignor as the lowest and best bidder.

When the specifications were written, the city had only one roller, and that a large one, weighing seven tons, which had to be drawn by horses. But afterwards, and before the contract was let, an officer designated as the city engineer had purchased for the city a small hand roller. When prospective bidders were examining the specifications at the city clerk's office in preparing their bids they were informed that the first layer of brick would not be required to be rolled by the large roller, but by the small one. In this situation plaintiff's assignor entered into the contract for paving and under which he obtained the tax bill in controversy. In that contract is the following clause: "It is hereby agreed and understood that the party of the first part shall cause the first course of brick, composed of local hard brick and the sand thereunder, to be rolled by a roller designated by the city engineer and furnished by the city, and the second or last course of brick, composed of vitrified brick, shall be rolled by the 7-ton roller owned by the city of Boonville; all to the satisfaction of the city engineer." It is thus seen that while the ordinance and specifications, upon which competitive bids were invited, required each layer of brick to be rolled with "the city roller" (which manifestly meant the seven-ton roller), the contract only required one of them to be so rolled and that the other should be rolled by a roller designated by the city engineer; and in point of fact the rolling was done by the small roller. It was shown by testimony, though such evident fact scarcely needed the aid of a statement from witnesses, that the heavy roller and the team pulling it would break and crush more brick in the first layer than would the light hand roller. Crushed and broken brick were required by the specifications to be taken out and sound ones tamped into their places. So, by permitting the contractor to use the hand roller, the work became less onerous and expensive, and opened the door to a charge of favoritism, which is so often found to exist in such cases and to avoid which the law has interposed an absolute and positive denial of the right to make a change in the contract from the matters of substance as advertised. McQuiddy v. Brannock, 70 Mo. App. 548-551; Galbreath v. Newton, 30 Mo. App. 380; Trenton v. Collier, 68 Mo. App. 491; Wickwire v. Elkhart, 144 Ind. 305, 43 N. E. 216; Chippewa Bridge Co. v. Durand, 122 Wis. 85, 99 N. W. 603, 106 Am. St. Rep. 931; Inge v. Board P. W. Mobile, 135 Ala. 187, 33 South. 678, 93...