City of Elsberry v. Black

• Decision Date: 05 June 1906
• Parties: CITY OF ELSBERRY, Respondent, v. BLACK, Appellant
• Court: Missouri Court of Appeals

96 S.W. 256

120 Mo.App. 20

CITY OF ELSBERRY, Respondent, v. BLACK, Appellant

Court of Appeals of Missouri, St. Louis

June 5, 1906

Appeal from Lincoln Circuit Court.--Hon. Houston Johnston, Judge.

REVERSED.

Judgment reversed.

Norton Avery & Young for appellant.

(1) Proceedings to compel owners to pay for improvements in front of their properties are in invitum, and strict performance of all conditions is necessary to fasten a lien upon the property of the citizen. Rose v. Trestrail, 62 Mo.App. 352; West v. Porter, 89 Mo.App. 150. (2) The work must be done in accordance with the plans and specifications, and any substantial variance between plans and specifications and the work as done will render taxbill void and prevent any recovery. Gallreath v. Newton, 30 Mo.App. 380; King Hill Brick Mfg. Co. v Hamilton, 51 Mo.App. 120; Dunn v. McNeely, 75 Mo.App. 217. (3) So strictly is performance required that if work is not completed within time limited in contract, the taxbill is void. Winfrey v. Singer, 89 Mo.App. 159.

Joseph R. Palmer and W. A. Dudley for plaintiff.

(1) An estimate of the cost of constructing the proposed walk is of no importance except when a contract is to be let. Here none was let. R. S. 1899, sec. 5984. But in this case a proper estimate was made by the proper officer in proper time. Sec 5984; Springfield to use v. Knott, 49 Mo.App. 612; Marshall v. Rainy, 78 Mo.App. 416; Bevier v. Watson, 87 S.W. 612. (2) A substantial compliance with the charter and ordinances is all that is required. Cole v. Skrainka, 105 Mo. 303, 16 S.W. 491; St. Joseph v. Landis, 54 Mo.App. 315; Rose v. Trestrail, 62 Mo.App. 352; Gibson v. Owen, 110 Mo. 445, 19 S.W. 713; Steffen v. Fox, 124 Mo. 630, 28 S.W. 70. (3) The charter (R. S. 1899, sec. 5992) and the ordinances (sec. 307) required the city to "keep an accurate account of the amount expended for labor and materials." The labor and materials having been paid for in gross by the square foot, the account necessarily assumed the same form. This was done and was sufficient. The taxbill and not the work done is the cause of action. Prendergast v. Richards, 2 Mo.App. 187. It makes a prima facie case for the city. R. S. 1899, sec. 5986; Stefel v. Dougherty, 6 Mo.App. 441; Moberly v. Hagan, 131 Mo. 19, 32 S.W. 1014; Seibert v. Allen, 61 Mo. 482.

OPINION

GOODE, J.

--This is an action on a special taxbill issued by the common council of the city of Elsberry in favor of that city for the construction of a granitoid sidewalk laid in front of a lot owned by the appellant. There was much controversy regarding the proceedings preliminary to the letting of the work and also as to whether the job when completed was a substantial compliance with the plans and specifications. A finding of facts was made by the trial court at the request of both parties by which we shall abide, and, therefore, will say regarding the facts, only that the court found the preliminary proceedings were regular and that the sidewalk laid pursuant to them conformed to the specifications. The point of difficulty in the respondent's cause is the mode in which the contract for laying the walk was let. There was a proper advertisement for bids for the work, looking to letting the contract to the lowest bidder in accordance with the statute. [R. S. 1899, sec. 5989.] But no bids were received and, thereupon, as the trial court found, the city council ordered the street commissioner and the street and alley committee to proceed with the construction of the walk in accordance with the specifications on file with the city clerk, and that said committee and commissioner keep an accurate account of the cost, including all labor and material, the same to be charged as a special tax against the abutting property. This proceeding was according to the statutes, for it is provided that when a city of the fourth class shall advertise for bids for the construction of a new sidewalk of any kind and shall receive no bids, the city may proceed to construct or reconstruct such sidewalk at its own expense, and shall keep an accurate account of the amount expended for labor and material, including the grading and filling opposite each lot or piece of ground, and...