City of St. Louis v. Wright Contracting Co.
| Citation | 109 S.W. 6,210 Mo. 491 |
| Parties | CITY OF ST. LOUIS v. G. H. WRIGHT CONTRACTING COMPANY and CITY TRUST, SAFE DEPOSIT AND SURETY COMPANY of Philadelphia, Appellants |
| Decision Date | 17 March 1908 |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Moses N. Sale Judge.
Reversed.
Seddon & Holland and Fidelio C. Sharp for appellants.
(1) Where an action is brought by a trustee for the benefit of third persons, they are the real parties, and the trustee has no individual interest in the action unless he is a co-beneficiary, expressly or of the same class, and then he has no greater or other interest than the other members of the class. St. Louis v. G. H. Wright Contracting Co., 202 Mo. 451; Natl. Bk. v. Ward, 100 U.S 195; Lewis v. Land Co., 124 Mo. 672; Rogers v Gosnell, 58 Mo. 589; School v. Lewis, 147 Mo. 580; Crone v. Stinde, 156 Mo. 262; Ammonet v. Montague, 75 Mo. 43; St. Louis v. Von Phul, 133 Mo. 561. (2) The lot-owners, not being mentioned as parties to the contract, cannot be made so by implication. There can be no implication to bind the defendant trust company, who is a mere surety. St. Louis v. G. H. Wright Contracting Co., 202 Mo. 451; Myers v. Parks, 6 Ohio St. 501; Harrisonville v. Porter, 76 Mo. 356; State v. Boon, 44 Mo. 354; State v. Johnson, 55 Mo. 80. (3) The city in making the contract was not acting as agent of the lot-owners or any third persons. St. Louis v. Wright Contracting Co., 202 Mo. 451; Thornton v. Clinton, 148 Mo. 663; Sweeny v. Kansas, 50 Mo.App. 265; Steffen v. City, 135 Mo. 144; Heft v. Payne, 97 Cal. 108; Scott v. Springfield, 81 Mo.App. 312. (4) The city in making the contract was not acting as the trustee of an express trust for the lot-owners or others. St. Louis v. Wright Contracting Co., 202 Mo. 451; Burton v. Larkin, 36 Kan. 246; Wright v. Terry, 23 Fla. 160; Smith v. Brown, 68 N.Y. 355; Porter v. Woods, 138 Mo. 539; Street v. Goodale, 77 Mo.App. 318; Devers v. Howard, 144 Mo. 671; State v. Loomis, 88 Mo.App. 500; Anderson v. Fitzgerald, 21 F. 294; Barbour v. Railroad, 49 La. Ann. 1608; Loeber v. Railroad, 41 La. Ann. 1157; City v. Westar, 35 Pa. St. 427; Emery v. Bradford, 29 Cal. 83; Himmelman v. Spargel, 39 Cal. 389; City v. Pecot, 38 Mo. 125; Howsmon v. Trenton, 119 Mo. 304; Berker v. Water Works Co., 79 Iowa 419. (5) The petition does not show that any valid taxbills were ever issued or that any valid liens were ever created. Reed v. Bott, 100 Mo. 62; Burnham v. Boyd, 167 Mo. 185; Vieth v. Planet, 64 Mo.App. 210; St. Louis v. De Noue, 44 Mo. 137; Kansas v. Surety Co., 71 Mo.App. 315; Mallinckrodt v. Nemnich, 169 Mo. 507; North St. Louis v. O'Bert, 169 Mo. 507; Hoester v. Sammelson, 101 Mo. 619; Wilson v. Polk County, 112 Mo. 126.
Charles W. Bates and Benjamin H. Charles for respondent.
The plaintiff in this action is the city of St. Louis. Such is the caption of the petition. Such also is the substance of the petition, viz: that defendants bound themselves . . . unto the city of St. Louis. The judgment rendered followed the caption and the substance of the petition, and, in effect, disregarded the allegation that plaintiff sues as a private trustee for lot-owners, and would account to them. The form of the judgment is, therefore, technically correct, even under St. Louis v. Wright, 202 Mo. 451; and no regard need be had to this allegation. If, however, the court sees fit to go behind the form of the judgment, it may direct an amendment of the petition by striking out this surplus allegation to make it conform technically to the theory that the city sues in its corporate capacity as the representative of the public. R. S. 1899, secs. 660, 672, 673; Beattie v. Lett, 28 Mo. 596; Cruchon v. Brown, 57 Mo. 38; Kansas City Hotel Co. v. Sauer, 65 Mo. 279; Weil v. Simmons, 66 Mo. 619; Bank to use v. Gilpin, 105 Mo. 17; State ex rel. v. Walbridge, 153 Mo. 194; Hunter v. Bank, 158 Mo. 262; Matney v. Gregg, 19 Mo.App. 107; Witte Iron Wks. v. Holmes, 62 Mo.App. 372; State v. Bockstruck, 136 Mo. 360. See, also, the similar cases of: Bledsoe v. Simms, 53 Mo. 305; Cooper v. Ord, 60 Mo. 430; Snell v. Harrison, 83 Mo. 651; Mueller v. Kaessmann, 84 Mo. 332; Crispen v. Hannovan, 86 Mo. 168; Orr v. Rode, 101 Mo. 400; Bouton v. Pippin, 192 Mo. 469. Appellants do not show that this allegation materially affects the merits of the action. R. S. 1899, sec. 865; Olney v. Eaton, 66 Mo. 563; Thompson v. Ins. Co., 114 Mo.App. 119. (1) St. Louis v. Wright, 202 Mo. 451, is not an authority against our position; but, on the contrary, seems rather to take it for granted that the city may recover substantial damages, in its corporate capacity, for the breaches of these bonds, although that case holds that it cannot do so in the capacity of trustee for the owners of lots. (2) Adding to the conditional clause of the bond a provision in favor of third persons, not parties thereto, cannot have the effect of taking away from the obligee of the bond its right to sue. The only effect of the former Wright case is to deny an action to any third persons who were not parties to the contract. St. Louis v. Wright, 202 Mo. 451. (3) The city acts in the interest of the public at large. Whether, therefore, the lot-owners who have paid increased taxbills can be represented by the city or not is immaterial. St. Louis v. Wright, 202 Mo. 462. (4) The charter powers of St. Louis are so broad that the city has the same right, in order to secure good work, to require of contractors any guaranties that private persons may take. And municipal officers who should neglect to take some kind of guaranty of the perfection of the work would be derelict in their duty. Bank v. Woesten, 147 Mo. 479. (5) The law itself, in the charter of the city, requires a bond, not for merely nominal damages (as would be the effect if defendants' contentions are sustained) but for a substantial thing, namely, compliance with the provisions of the contract. "No contract shall be made . . . without a bond for its faithful performance." Charter, art. 6, sec. 27; R. S. 1899, p. 2514; R. S. 1899, sec. 6761.
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 taxbills 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 the 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;...
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