City of Springfield ex rel. Gilsonite Construction Co. v. Schmook
| Decision Date | 05 June 1906 |
| Parties | CITY OF SPRINGFIELD ex rel. GILSONITE CONSTRUCTION COMPANY, Appellant, v. SCHMOOK et al., Respondents |
| Court | Missouri Court of Appeals |
Appeal from Greene Circuit Court.--Hon. James T. Neville, Judge.
AFFIRMED.
Judgment affirmed.
M. C Early and Barbour & McDavid for appellant.
(1) Under the law governing cities of the third class the taxbills sued on are assignable and collectible by the holder thereof and are prima facie evidence of the regularity of the proceedings, of the validity of the taxbills, of the doing of the work, and the validity of the charge against the property therein described to the charge stated in the taxbill. A general denial constitutes no answer. The defects relied on must be specially pleaded and affirmatively proved. Sec 5858, R. S. 1899, same as Laws 1893, page 65. City Ordinances, sec. 605; City of Carthage v. Badgley, 73 Mo.App. 123; City of Springfield v. Baker, 56 Mo.App. 637; Moberly v. Hogan, 131 Mo. 19, 32 S.W 1014; Asphalt Paving Co. v. Ullmann, 137 Mo. 560, 38 S.W. 458. (2) The defendants' fifth contention is, that the work was not completed within ninety days, as they claim was required by the contract. The contract must be construed in connection with the resolutions and ordinances authorizing it. Resolution No. 377 does not provide any time limit for completion. Ordinance No. 2572-A, ordering the work and advertisement for bids does not provide any time limit for completion. The advertisement of the city engineer for bids does not provide any time limit for completion. Ordinance No. 2578, accepting the bid and awarding the contract does not provide any time limit for completion. If a time limit was to be fixed it was the duty of the council to to fix it. The doctrine is firmly established that the council could not delegate this authority to the mayor and street committee, who signed the contract on the part of the city. They did not even attempt to delegate the authority to the mayor and street committee to fix ninety days as a time limit for the completion of the work. They simply assumed the authority. (3) In determining what is a reasonable time the circumstances of each separate case must be considered. It is a fact to be determined by the jury like any other fact in a case. In this case, the bad weather; the freezing weather; the refusal of the car company to improve its tracks; the two suits that caused the delay; the change of the specifications; the order of the city to discontinue the work; the fact that no damage to defendants is either alleged or proven by reason of the delay; the fact that defendants stood by and saw the work done and completed and their property benefited without complaint or resort to the courts--all these things must be considered in determining what was a reasonable time. Under these conditions to hold these taxbills void, when no damage whatever has been caused to the defendants, would be to take away from the plaintiff the cost of its labor, money and material and give it to defendants and allow them without cost or expense to enjoy and reap the benefits of an improvement made at their request. Heman v. Gillian, 171 Mo. 258, 71 S.W. 163; Hill-O'Meara Co. v. Hutchinson, 100 Mo.App. 294, 73 S.W. 318; Carlin v. Cavender, 56 Mo. 286; Hilgert v. Barber Asphalt Co., 81 S.W. (Mo. App.) 496; Ash v. Independence, 79 Mo.App. 74; Mastin v. Grimes, 88 Mo. 485; Godfrey v. Stock, 116 Mo. 403, 22 S.W. 733; Sparks v. Villa Rosa Land Co., 99 Mo.App. 489, 74 S.W. 120; Bryant v. Saling, 4 Mo. 522; McNew v. Booth, 42 Mo. 192; Salisburg v. Renick, 44 Mo. 556; Parsons on Contracts, sec. 662 (7 Ed.), p. 795; Bishop on Contracts, secs. 327, 1347; Hart v. Bullion, 48 Tex. 278; Quill v. Jacoby, 37 P. 524; Grant v. Bank, 35 Mich. 516; Greenwood v. Davis, 106 Mich. 230; Frame v. The Ella, 48 F. 569; Luschart v. Ogden, 30 Cal. 547; Waterman v. Dutton, 6 Wis. 265; Lindsey v. Police Jury, 16 La. Ann. 389; Smith v. Spratt Machine Co., 46 S.C. 511; Strange v. Wilson, 17 Mich. 341.
W. D. Tatlow and John Schmook for respondents.
(1) In actions at law, decided by the trial court, in which a general verdict was rendered, and no finding of facts, declarations of law or instructions were requested, made or granted, the appellate court will not reverse the judgment, where there is substantial evidence to support the verdict. Strode v. Abbott, 102 Mo.App. 172, 76 S.W. 644. (2) This court gives special recognition to the above rule when, in O'Mara v. St. Louis Transit Co., 102 Mo.App. 210, they say: "We are far from being satisfied with some verdict which, because supported by substantial evidence, we have to let stand." Spaulding v. City of Edina, 104 Mo.App. 53, 78 S.W. 302; Hamilton v. Boggess, 63 Mo. 233; Sutter v. Raeder, 149 Mo. 307-308, 50 S.W. 813; Caldwell v. Bank, 100 Mo.App. 29, 71 S.W. 1093. (3) Failure to complete the work provided for within the time stipulated in contract renders taxbills void. Springfield v. Davis, 80 Mo.App. 574; Trust Co. v. James, 77 Mo.App. 616; McQuiddy v. Brannock, 70 Mo.App. 535; Rose v. Trestrail, 62 Mo.App. 352; Neill v. Gates, 152 Mo. 585, 54 S.W. 460; Barber Asphalt Paving Co. v. Ridge et al., 169 Mo. 376, 68 S.W. 1043; Springfield General Ordinances, sec. 584.
--This is an action to enforce the lien of three taxbills issued to pay for paving the street in front of a lot in the city of Springfield. Those of the defendants in whom the title to the lot is vested are the heirs or devisees of John Schmook, deceased, who was the owner of the lot when the proceedings in question occurred. The other defendants are interested as trustees or beneficiaries in deeds of trust. The property lies on the west side of Boonville street, a thoroughfare along which double street car tracks run. The improvement for which the taxbills were issued is an asphalt pavement and was laid by the Gilsonite Roofing and Paving Company, which assigned the taxbills to the Gilsonite Construction Company, to whose use the present action was brought. The judgment of the court below was in favor of the defendants. Several defenses were interposed, but the only one we find it necessary to consider is that the work was not completed within the time required by the contract between the city and the original contractor, the Gilsonite Roofing & Paving Company. The proceedings for the improvement of the street were started by two resolutions passed by the council of the city of Springfield, June 9, 1898. Under the ordinances of the city and the franchises by which the street railway company (the Springfield Traction Company) used the street, it was incumbent on it to pave that portion of the street occupied by its rails and two feet outside. One of the original resolutions declared it was necessary to improve the street by paving with asphalt that portion of the roadway on either side of the street car tracks and two feet from them, and the other resolution declared it was necessary to pave with the same material the center of the street occupied by the car tracks and two feet beyond the outer rails and ordered the Traction Company to lay that paving. The other work was to be let by the city to a contractor to be done in conformity to specifications on file in the office of the city engineer. Bids for the work were advertised for by the city and that of the Gilsonite Company was accepted by an ordinance approved July 20, 1898. This ordinance said nothing about the time in which the work should be begun or finished; but the city entered into a contract with the Gilsonite Roofing & Paving Company, dated July 25, 1898, which contained a provision that the said company, as contractor, should complete the work according to specifications in ninety days from the time the contract took effect. We quote that clause of the contract:
"Now, therefore, the said party of the first part hereby agrees with the said city of Springfield, to do and complete said work according to specifications, without negligence, causing or tending to cause damage to private property for which the city might be held liable, furnishing all materials therefor at his own cost and expense, within ninety days from the time this contract goes into force and effect, according to such directions as the city engineer and street committee of the city of Springfield, may from time to time give in superintending the construction of said work, and in accordance with the plans and specifications of said work prepared by the city engineer for the letting of a contract for said work, and to the satisfaction and acceptation of the city engineer of the city of Springfield, and said specifications are attached hereto and made a part of this contract; provided, if the contractor is delayed by injunction or legal proceedings, or by any unavoidable cause, the time or completion shall be extended by the council covering said delay."
At the time the contract was executed, a general ordinance of the city of Springfield was in force which provided that every person who should bid for the job of constructing, should enter into a written contract within ten days and complete the improvement according to the plans, specifications and ordinances within the time agreed on, without...
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