City of Poplar Bluff To the Use of Jolly v. Bacon

• Decision Date: 06 June 1910
• Citation: 129 S.W. 466,144 Mo.App. 476
• Parties: CITY OF POPLAR BLUFF to the use of H. H. JOLLY, Appellant, v. ERNEST BACON et al., Respondents
• Court: Missouri Court of Appeals

129 S.W. 466

144 Mo.App. 476

CITY OF POPLAR BLUFF to the use of H. H. JOLLY, Appellant, v. ERNEST BACON et al., Respondents

Court of Appeals of Missouri, Springfield

June 6, 1910

Appeal from Butler Circuit Court.--Hon. J. C. Sheppard, Judge.

Judgment affirmed.

David W. Hill for appellant.

(1) The trial court correctly ruled that plaintiff's petition stated a cause of action. Joplin ex rel. v Hollingshead, 123 Mo.App. 602; Sedalia ex rel. v Smith, 206 Mo. 346; Joplin ex rel. v. Freeman, 125 Mo.App. 717; R. S. 1899, secs. 5858, 5859, 5860; Sessions Acts of 1901, p. 63. (2) That portion of the contract which attempted to limit the contractor to "limestone" rock was in violation of the ordinance and the contractor was not bound to use "limestone" rock, and the fact that a small per cent of the rock used would not pass through a two inch ring would not vitiate the taxbill, as substantial compliance with the contract is all that is required. Cole v. Skrainka, 37 Mo.App. 427; Heman v Gerardi, 96 Mo.App. 231; Marionville to use v. Henson, 65 Mo.App. 397.

James F. Green and Ernest A. Green for respondents.

(1) The resolution authorizing and providing for the proposed improvement did not describe the kind and character of the improvement or designate the materials of which the improvement was to be made. Coulter v. Construction Co. , 131 Mo.App. 233; Paving Co. v. O'Brien, 128 Mo.App. 280; Kirksville v. Coleman, 103 Mo.App. 215; Kansas City v. Askew, 105 Mo.App. 84. (2) The proposed plans, estimates and specifications for this work were not filed until more than six months after the passage of the resolution authorizing the work. Dickey v. Holmes, 109 Mo.App. 721; Jones v. Plummer, 137 Mo.App. 337. (3) The resolution declares for the crushed stone to be four inches thick, while the ordinance, plans and contract provided for six inches in depth. Kirksville v. Coleman, 103 Mo.App. 215; Trenton v. Collier, 68 Mo.App. 483. (4) The contract did not conform to either the resolution or the ordinance, and was therefore invalid. R. S. 1899, sec. 5860; DeSoto v. Showman, 100 Mo.App. 329; Galbreath v. Newton, 30 Mo.App. 392; Excelsior Springs v. Ettenson, 120 Mo.App. 215; Turner v. Springfield, 117 Mo.App. 418; McCormick v. Moore, 134 Mo.App. 679. (5) The proof clearly showed a total failure on the part of the contractor to substantially perform his contract and, therefore, this action could not be maintained. Kansas City v. Askew, 105 Mo.App. 87; Traders Bank v. Payne, 31 Mo.App. 512; West v. Porter, 89 Mo.App. 153; Jones v. Plummer, 137 Mo. 337. (6) Plaintiff's petition wholly failed to state a cause of action. Sedalia v. Abell, 103 Mo.App. 436; Wheeler v. Poplar Bluff, 149 Mo. 36; Carthage v. Badgley, 73 Mo.App. 123.

OPINION

GRAY, J.

This is a suit for the enforcement of a special taxbill in the sum of $ 63.25, levied by the city of Poplar Bluff, a city of the third class, against the real estate of the defendants, for macadamizing a portion of Main street, in said city.

On the 5th day of November, 1906, the mayor and real estate of the defendants, for macadamizing a proposed improvement as follows: "The proposition is to macadamize with crushed rock four inches deep and 27 feet wide." At the time this resolution was passed, and for several months thereafter, no plan, specification or estimate was on file in the office of the city clerk, but on the 29th day of July, 1907, an estimate of the cost, made by one W. E. Morrison was filed. This estimate provided that the grading and preparing the street for the macadam should be paid for by the city, and that the macadam or crushed rock to be placed on the street should be of a size that would pass through a two-inch ring and put on the street six inches deep, and for the width of twenty-seven feet, estimating the cost of the same at one dollar per lineal foot of street. On the same day the estimate was filed, the council passed an ordinance for the improvement, reciting the resolution, the publication thereof, and the fact that no remonstrance had been filed, and that W. E. Morrison, by order of the council, had made and filed with the city clerk a proper estimate of the work. The ordinance provided that the profile, maps and estimate of work as made by the city engineer and said Morrison, were approved and adopted.

In September, 1907, a contract was entered into between the city and H. H. Jolly. In this contract the work to be done was described as follows: "That the first party will macadamize said street with crushed limestone rock; said rock having been first crushed to a size that the largest piece will pass through a ring two inches in diameter."

The cause was tried to a jury on the 20th day of October, 1907, and at the close of the testimony, the court instructed the jury to find the issues for the defendant, and the jury returned a verdict for the defendant, and judgment was rendered thereon, from which the plaintiff appealed to this court.

The petition alleges the making of the resolution, ordinance, contract, performance of the work, and the issuing of the taxbill, a copy of which was set forth in the petition. The answer contained a general denial, and also several separate and distinct defenses.

The uncontradicted testimony shows that crushed limestone as called for in the contract, was not used by the contractor in making the improvement. The contractor, testifying for himself, stated that the only crushed limestone there was in or near Poplar Bluff, was what he had shipped in to make improvements, and that he used no crushed limestone in making the improvement. The resolution, ordinance or specifications did not call for "crushed limestone," but only called for "crushed stone," and the appellant maintains that he was not required to use the limestone, although his contract provided therefor. It is not claimed that the difference in the contract, ordinance and specifications was caused through mistake.

The original resolution provided for macadamizing to the depth of four inches. At the time the resolution was published, no specifications for the work were on file in the office of the city clerk, so the only information the property-owner had concerning the proposed improvement, was contained in the resolution. Several months afterward, the specifications and ordinance for the proposed improvement were adopted, and therein it was stated that...