City of Jackson, to Use of Cape County Sav. Bank v. Houck

• Decision Date: 08 December 1931
• Parties: CITY OF JACKSON, MISSOURI, TO THE USE OF CAPE COUNTY SAVINGS BANK, A CORPORATION, APPELLANT, v. GIBONEY HOUCK, RESPONDENT
• Court: Missouri Court of Appeals

43 S.W.2d 908

226 Mo.App. 835

CITY OF JACKSON, MISSOURI, TO THE USE OF CAPE COUNTY SAVINGS BANK, A CORPORATION, APPELLANT, v. GIBONEY HOUCK, RESPONDENT

Court of Appeals of Missouri, St. Louis

December 8, 1931

Appeal from the Circuit Court of Cape Girardeau County.--Hon. Frank Kelly, Judge.

REVERSED AND REMANDED (with directions).

Hines & Hines and Spradling & Dalton for appellant.

(1) (a) The office of a description is not to identify the land, but to furnish a means for identifying the same. 18 C. J. 180; Thompson on Real Property, vol. 4, sec. 3074; Matthews v O'Donnell, 233 S.W. 451, 457. (b) The real estate described in the tax bill is capable of identification and the description is good. It is the southeast part of Lot 13. It is bounded on the north by the William Grohsman property and on the west by the H. L. Jones property. It is rectangular and the boundaries are fixed by definite measurements. The lot is in Jackson, Missouri. There is nothing to indicate that any other Lot 13 is so located and this property could be easily identified. Bollinger County v. McDowell, 99 Mo. 632; Hammond v Johnston, 93 Mo. 198; Cole v. Ritter, 86 Mo 277; Cole v. Mueller, 187 Mo. 638; Whitwell v Spiker, 238 Mo. 629; Matthews v. O'Donnell, 233 S.W. 451. (c) The real estate could easily be located by parol. Adkins v. Moran, 67 Mo. 100; Charles v. Patch, 87 Mo. 450. (d) The deed under which respondent claims title to the real estate in controversy contains the identical description set out in the tax bill. If the description in the tax bill is void, then the deed under which respondent claims title is void for failure to describe the real estate. Under such conditions the respondent is estopped from contending that the tax bill is void. (2) (a) The city of Jackson is a city of the fourth class and the charter of such cities do not provide for any definite method of extending the time for the completion of a paving contract. It is sufficient if done by either resolution or motion. Cushing v. Hartwig, 138 Mo.App. 114; City of St. Charles v. Stookey, 85 C. C. A. 494; Robertson v. Bitulithic Co. (Ky.), 227 S.W. 453; Terre Haute Ry. v. Nelson, 27 N.E. 486; Haskins v. De Soto, 35 S.W.2d 964. (b) Under the ordinance and contract as written the city of Jackson had a right to extend the time for completing the work by motion. Paving Co. v. Hayward, 248 Mo. 280; Hund v. Rachliffe, 192 Mo. 312. (c) The extension of time given the contractor, or the delay in completing the work did not injure respondent. He sustained no damages by reason thereof and is not in position to complain. Robertson v. Bitulithic Co. (Ky.), 227 S.W. 453. (3) (a) The estimate of the cost of improving North High Street was made and filed by the Mayor, he being authorized so to do by ordinance, and such estimate is good. Sec. 7056, R. S. 1929; Gratz v. City of Kirkwood, 182 Mo.App. 581; Gratz v. City of Kirkwood, 183 S.W. 1071; Tabb v. Burt, 296 S.W. 820; Gast v. Langston, 15 S.W.2d 353. (4) (a) The fact that the engineering cost was included in the tax bill would not invalidate it, but the excess can be deducted from the tax bill. City of Boonville v. Rogers, 125 Mo.App. 142; Walsh v. Bank, 139 Mo.App. 641; City of Washington v. Mueller, 287 S.W. 856; Grant City v. Salmon, 288 S.W. 88. (b) In its replication, the appellant has tendered to respondent the excess, if any, over and above the contract price. This can be very easily determined for the reason that the engineering cost was five per cent (5%) of the contract price. (5) (a) All the objections made by respondent were to matters of record. The slightest attention on his part would have disclosed them to him, yet, he made no objection or protest. His conduct ought to estop him from urging such objections at this time. Welch v. Trust Co., 223 S.W. 768; Sheehan v. Owens, 82 Mo. 458; Jaichs v. Merrill, 201 Mo. 91; Johnson v. Duer, 115 Mo. 366.

L. L. Bowman for respondent.

Giboney Houck, pro se.

(1) The time for completion of paving provided for by ordinance and a contract made by ordinance cannot be extended by oral motion but the extension of time must be by ordinance or resolution passed with the same formality of an ordinance because the extension of time for the completion of street improvements is a legislative act, and because an ordinance cannot be amended by motion or resolution. An oral motion to extend the time is not sufficient also because the statutes requires all contracts to be in writing. Sec. 2962, R. S. 1929; Sec. 7047, R. S. 1929; 28 Cyc., pp. 380 and 381, n. 24; Sedalia to use v. Donohue, 190 Mo. 407; Webster Groves v. Reber, 226 S.W. 77; Hund v. Radcliffe, 192 Mo. 312; Heman v. Gilliam, 171 Mo. 258; City of Brunswick ex rel. v. Scott, 275 S.W. 994; Ruggles v. Collier, 43 Mo. 359. (2) The description in the assessment ordinance and the tax bill sued on was bad because it is too definite and uncertain to pass title and does not in fact describe any property. A description in an involuntary conveyance and in proceedings in invitum cannot be bolstered up by extrinsic or parole evidence nor will any witness be allowed to depend on his memory to make the description sufficient to support a judgment or lien. State ex rel. Wyatt, Collector v. Wabash Ry. Co., 114 Mo. 1; State ex rel. Collector v. Burrough, 174 Mo. 700; State ex rel. Jennings v. Hamilton, 293 S.W. 378; State ex rel. Linney, 192 Mo. 49; O'Day v. McDaniel, 181 Mo. 529; Blackwell on Tax Titles, p. 124; Freeman on Executions, par. 281. (3) In cities of the fourth class a non-resident cannot act as city engineer for the purpose of preparing and submitting a preliminary estimate of the cost of paving as provided in section 7056, Revised Statutes 1929, and this provision cannot be evaded by appointing the Mayor at the last minute to sign a report prepared by such non-resident engineer. Sec. 7056, R. S. 1929; Williams v. Hybskmann, 311 Mo. 332; Gratz v. Kirkwood, 182 Mo.App. 581; Rich Hill v. Dorman, 82 Mo.App. 386. (4) When the tax bill is issued for a larger amount than the bid the excess should be deducted from the tax bill. We agree with and cite the same cases as cited by appellant. City of Boonville v. Rogers, 125 Mo.App. 142; Walsh v. Bank, 139 Mo.App. 641; City of Washington v. Mueller, 287 S.W. 856; Grant City v. Salmon, 288 S.W. 88. (5) Before estoppel can be relied upon it must be specially pleaded and also be assigned as an error in a motion for new trial. Estoppel cannot be raised for the first time on appeal. Bank v. Doran, 109 Mo. 40; Dairy Co. v. Bank, 315 Mo. 849; Bartlett v. McAllister, 316 Mo. 129. (6) It is only necessary to follow strictly the proceedings provided by statute in order to issue a valid tax bill. The question of benefits or damages has nothing to do with the validity of the bills. Sec. 7060, R. S. 1929.

HAID, P. J. Becker and Nipper, JJ., concur.

OPINION

HAID, P. J.

--This is an appeal from a judgment for defendant upon a special tax bill for the grading, paving, curbing, draining and improving the roadway of North High Street in the city of Jackson, a city of the fourth class, from the north line of First North Street, northwardly, to the southwest corner of the Clippard property and of roadway and alley intersections with said North Street.

Section 4 of the ordinance provided that the successful bidder should within ten days after being awarded the contract, enter into a written contract therefor with the city and said improvement should be begun within ten days after such contract was entered into and the bond of the contractor approved, and should be fully completed within three months thereafter, provided that for good cause shown, the board of aldermen of the city might extend the time for completing the improvement upon application of the contractor made as soon as the necessity therefor appeared, and before the expiration of the time fixed for the completion of the same.

This ordinance was passed and approved on September 12, 1928. On December 17, 1928, the records disclose that "on motion of Mr. Miller duly seconded an extension of time to June 1, 1929, is granted the Service Construction Company in which to complete the paving on North High Street."

There appears to be no record of an ordinance extending the time, no written motion to that end and nothing to indicate that the contractor made application for an extension of time.

In his answer the defendant does not allege that he was in any wise prejudiced or inconvenienced by reason of the noncompletion of the improvement within the time specified in the contract but relies solely upon technical objections to defeat the tax bill. As is said by the court in the case of Asphalt Paving Co. v. Ullman, 137 Mo. 543, 38 S.W. 458:

"It is a grave error to suppose that the law looks with any disfavor upon these special tax bills for street improvements. They are to be treated with the same fairness and justice that should be accorded all public acts of the civil authority, when taken in conformity to law." [Paving Co. v. Hayward, 248 Mo. 280, 154 S.W. 140.]

One of the attacks made by the defendant upon the special tax bill is that the same was void because the work was not completed within the time specified by the contract and the ordinance and that the time for the completion of the work was not properly extended by ordinance as required by law. The contention is based upon the proposition that since, under section 7016, Revised Statutes of Missouri 1929 (which provides that no ordinance shall be passed except by bill and no bill shall become an ordinance unless on its final passage a majority of the members elected to the board of aldermen shall vote for it and the ayes and nays be entered in the journal and that all bills shall be read three times...