City of St. Louis v. G. H. Wright Contracting Co.

• Decision Date: 17 March 1908
• Citation: 109 S.W. 6,210 Mo. 491
• Parties: CITY OF ST. LOUIS v. G. H. WRIGHT CONTRACTING CO. et al.
• Court: Missouri Supreme Court

109 S.W. 6

210 Mo. 491

CITY OF ST. LOUIS v. G. H. WRIGHT CONTRACTING CO. et al.

Supreme Court of Missouri, Division No. 2.

March 17, 1908.

1. JUDGMENT—CONFORMITY TO PLEADINGS.

A judgment not authorized by the allegations of the petition is erroneous.

2. APPEAL — PLEADINGS — AMENDMENT — AUTHORITY OF COURT.

Rev. St. 1899, §§ 660, 672, 673 (Ann. St. 1906, pp. 679, 686, 690), authorize the allowance of amendments to pleadings after final judgment in furtherance of justice, etc. In an action by a city on a bond of a contractor for a street improvement, the petition alleged breaches of the contract, abandonment of the work, and the completion thereof by another, and averred that the city sued as trustee of an express trust for the owners of the property against which tax bills were issued, and that it, in the event of a recovery, would distribute the amount recovered among the owners of the property, and prayed for the penalty of the bond. Judgment for substantial damages was rendered. Held, that the court on appeal could not disregard the allegations that the city sued as trustee for the owners of the property, and that the recovery would be distributed among them and uphold the judgment, though the city could not sue as trustee for the owners, especially where the cause was tried on the theory of the existence of a contract between the owners of the property and defendants, and that the owners were entitled to recover for the breach as parties to the contract.

3. SAME.

A cause must be heard in the appellate court on the same theory as that on which it was tried in the court below.

Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.

Action by the city of St. Louis against the G. H. Wright Contracting Company and another. From a judgment for plaintiff, defendants appeal. Reversed.

See 101 S. W. 6.

Seddon & Holland and Fidelio C. Sharp, for appellants. Charles W. Bates and Benjamin H. Charles, for respondent.

BURGESS, J.

This is a suit for damages for breach of certain contracts and bonds for the doing of certain public work in the city of St. Louis. The petition contains five counts, each based upon a separate contract. The contracts differ only in respect to dates, penalties, and the character and quantity of the work to be performed under each, and the several counts of the petition are varied to meet these minor differences. It will therefore be only necessary to refer to one the first count of the petition, which alleges, in substance: That on the 28th day of June, 1900, the defendant contracting company, as principal, and the defendant surety company, as security, entered into a bond and writing, whereby they bound themselves unto the city of St. Louis in the penal sum of $5,529.05, which said bond was subject to the conditions that if the defendant contracting company should faithfully and properly perform the contract preceding the bond, and of which the bond forms a part, according to the terms of said contract, and should, as soon as the work contemplated by the contract was completed, pay to the proper parties all amounts due for material and labor used and employed in the performance of the contract, then the obligation should be void, otherwise, to remain in full force and effect. That the contract was entered into on the 28th day of June, 1900, and by its terms the defendant contracting company undertook and agreed with plaintiff to do and perform the work of reconstructing a certain portion of Easton avenue, and to furnish all the work, labor, materials, and appliances necessary therefor, said work to be done in conformity with the plans on file in the office of the street commissioner and in strict obedience to his directions.

The petition sets out the items of the work to be performed and the prices to be paid therefor, and then states that plaintiff was to pay for the work and materials in special tax bills against the lots of ground adjoining Easton avenue in proportion to their frontage on the improvement. Continuing, the petition states that the defendants did not perform the conditions of their contract and bond, but failed, neglected, and refused to commence work as requested in writing dated October 8, 1900, and in subsequent notices, and failed to comply with the specifications and stipulations of said contract in that said defendant contracting company failed and refused to perform the work or any part thereof, but abandoned both the work and contract; whereupon plaintiff annulled and canceled said contract in the manner provided for in such case by the terms thereof. That thereupon the board of public improvements of the city of St. Louis, in accordance with the terms of said contract, proceeded to relet the work to J. E. Perkinson, who was the lowest and best bidder for the same, and proceeded to have the work completed by said Perkinson; but that plaintiff was compelled to pay said Perkinson, in the manner provided for by said contract with the defendant contracting company, certain prices and amounts for such work, all of which the petition sets forth in detail. Then follows the allegation that, under the said contract with the defendant contracting company, said defendant, for all of the materials and labor employed, would have been entitled to receive at the prices fixed by their contract, the total amount of $6,772.16, but that plaintiff was compelled to pay to said Perkinson for the performance of the same work and furnishing the same materials the aggregate amount of $6,835.46, or the sum of $63.30 over and above the sum for which the defendant contracting company agreed to perform and furnish the same; that the payments so made by plaintiff were, in conformity with said contract, made in special tax bills duly issued by plaintiff to said Perkinson. The petition further states "that plaintiff brings and maintains this suit as the trustee of an express trust for itself and the owners of the several lots of ground against which the said several tax bills were issued; and plaintiff, in the event of recovery, will distribute any amounts recovered among the owners of the several lots charged with the cost of the aforesaid improvements in the same proportion in which the said several owners were compelled to contribute for the cost of said improvements"; that, "by reason of the breach of the contract on the part of said defendant G. H. Wright Contracting Company, and its failure and the failure of defendant...