City of Washington ex rel. Bihr v. Mueller

• Decision Date: 21 September 1926
• Parties: CITY OF WASHINGTON EX REL., MERRILL F. BIHR, RESPONDENT, v. JOHN C. MUELLER, APPELLANT.
• Court: Missouri Court of Appeals

287 S.W. 856

220 Mo.App. 564

CITY OF WASHINGTON EX REL., MERRILL F. BIHR, RESPONDENT, v. JOHN C. MUELLER, APPELLANT.

Court of Appeals of Missouri, St. Louis

September 21, 1926

Appeal from the Circuit Court of St. Louis County.--Hon. G. A Wurdeman, Judge.

REVERSED AND REMANDED (with directions).

Judgment reversed and remanded.

Irwin & Dunn and Ralph & Baxter for appellants.

Jesse H. Schaper for respondent.

BENNICK C. Daues, P. J., and Becker and Nipper, JJ., concur.

OPINION

BENNICK, C.--

This is a suit for the collection of a special tax bill issued by the city of Washington, a city of the third class, in favor of Merrill F. Bihr, relator, in the sum of $ 639.72, said amount being defendant's proportionate share of the cost of the construction of a sewer in Sanitary Sewer District Number 19 in said city. The case was taken on a change of venue from Franklin county to St. Louis county, where upon a trial the finding was in favor of the plaintiff and a judgment entered against defendant for the full amount of the tax bill, with interest, or for the total sum of $ 693.72. After an unavailing motion for a new trial, defendant has appealed.

The petition is in the usual form. In the answer, among other defenses, it is alleged that the tax bill is void by reason of the fact that the total amount of the tax bills issued against the property owners in the sewer district was in excess of the estimate made by the city engineer and the street commissioner, and in excess of the sum which relator contracted to accept for the construction of said sewer in accordance with the plans and specifications on file. The answer concludes with a prayer that said tax bill be canceled.

The reply is conventional.

It appears that a petition signed by sixteen resident property holders was filed with the city council on February 19, 1923, asking for the formation of Sanitary Sewer District Number 19 and the construction of a sewer therein. After some preliminary discussion, on March 5, 1923, the city council adopted Ordinance No. 319, establishing the boundaries of said sewer district and defining the area which should be subject to special assessment. On March 17, 1923, there was filed with the city clerk by William Stoecker, the city engineer, the specifications for the construction of such sewer, both as to the materials to be used and the details of the construction. Section 6 of the general stipulations of such specifications contained the following provision:

"6. The City Engineer shall have the right to make alterations in the line grade, plans, form or dimensions of the work. If such alterations diminish the quantity of the work to be done, that shall not entitle the contractor to a claim for damages or for anticipated profits on the work dispensed with; if they increase the work, such increase shall be paid for according to the quantities done, and at the prices stipulated for such work actually done."

On March 19, 1923, Ordinance No. 320 was passed, providing for the construction of the sewer and for the letting of the contract for the work. Important excerpts from such ordinance are as follows:

"Section 2. For the purpose of doing said work the city clerk is hereby directed to advertise for bids for the letting of said work by contract. . . . Each bidder shall file with his bid a certified check in the sum of $ 25, guaranteeing if he is the successful bidder, he will enter into a written contract with the city for said work, within ten days after the acceptance of the bid by the council. . . ."

"Section 3. W. Stoecker, City Engineer, and the street commissioner, are hereby authorized and directed to prepare an estimate of the cost of said work, and file the same with the city clerk. The Council shall not award the contract for said work at a greater sum than such estimate, and the council reserves the right to reject any and all bids. The contract shall be let to the lowest and best bidder."

In compliance with this ordinance an estimate was prepared by the city engineer, giving the estimated amount of each item of labor and material together with the estimated prices thereof per unit and the total estimated price of each of said items, the total estimated cost being $ 7,634.32. While there is some conflict in the testimony regarding whether such estimate was filed with the city clerk, we take it that the recital in contract Ordinance No. 322 that it was filed is decisive of that question.

In response to advertisements in the newspapers, bids were received, among them being that of relator in the sum of $ 7,567.08, said bid being submitted March 31, 1923. This bid was prepared in the same general form as the estimate filed by the city engineer. On April 2, 1923, contract Ordinance No. 322 was adopted by the city council, letting the contract for the construction of the sewer to relator. Section 1 of this ordinance provided as follows:

"Section 1. Whereas, M. F. Bihr was the lowest and best bidder for the contract for constructing a sanitary sewer in sewer district No. 19, in the city of Washington, Missouri, at the price and sum of $ 7367.08, the said price not exceeding the estimate of the cost of said work heretofore filed in the city clerk's office by the street commissioner and city engineer, and which price is subject to such deductions as provided for by the specifications herein referred to. Now, therefore, the contract for said work is hereby let to the said M. F. Bihr for the considerations herein mentioned. The said contractor hereby binds himself . . . to furnish all labor and materials necessary to do said work, according to the plans and specifications for the same, prepared by the city engineer and street commissioner, and on file in the city clerk's office, and which said plans and specifications are made a part of this contract ordinance. . . ."

In his acceptance of the terms of the city as provided in the contract ordinance, relator agreed as follows:

"M. F. Bihr, to whom the contract for the work provided for in this ordinance contract has been let and awarded, hereby agrees to the terms of said ordinance contract, and agrees to furnish all labor and materials, and perform said work . . . for the price, in the manner and within the time provided in the foregoing ordinance contract, and the plans and specifications in said ordinance mentioned. . . ."

On October 13, 1924, the city engineer reported in writing to the mayor and city council that the sewer had been completed by relator in accordance with the contract and specifications, and that it had been tested and found to be in complete working order. At the same time the cost of the work was apportioned against the various tracts of land in the district, and the amount due from defendant, as the owner of a certain tract therein, declared to be $ 452.72. On October 15, 1923, the city council adopted Ordinance No. 348, accepting the above report of the city engineer and directing the issuance of tax bills in the total sum of $ 7367.08 against the various tracts of land in the sewer district.

The specifications filed by the city engineer had called for the excavation of 1842 cubic yards of solid rock, shale and other substances, such estimate having been made upon the assumption (not expressed in the specifications) that the trench would be two feet in width. In the actual construction of the sewer, however, relator removed 2435 cubic yards of the different materials due to his excavating the trench at a width of not less than three feet. It will be recalled that the specifications provided that the city engineer should have the right to make alterations in the plans, from, or dimensions of the work, and that, if such alterations should increase the work, such increase should be paid for according to the quantities done and at the prices stipulated for such work actually done. It appears, however, that the additional excavation made by relator was not due to any change of the specifications on the part of the city engineer. In this connection we quote from relator's own testimony:

"Q. There was no alteration made in the original plans of this sewer construction? A. No, sir, not to the best of my knowledge.

"Q. No additions? A. No, sir.

"Q. No deductions? A. No, sir.

. . . .

"Q. What instructions, if any did you get from the city engineer? A. None at all.

"Q. Did the engineer examine your work from time to time with reference to the width and depth of the ditch? A. Every day.

"Q. What did he say about the width of the ditch? A. He did not say anything about it."

In view of the increased excavation, relator refused to accept the sum of $ 7367.08, which was the amount of his bid, but instead made demand on the city for $ 10,410.43, the actual cost of the sewer, his theory being that his bid was on the basis of unit prices, and that the work under the contract required measurements by the city engineer in order to determine the final cost.

His demand being refused, relator instituted proceedings in the circuit court of Franklin county for a writ of mandamus directing the authorities of the city of Washington to cancel the tax bills which had been issued, and to issue in lieu thereof new and other special tax bills based upon the sum of $ 10,410.43 as the actual cost of the sewer. Upon the trial of this case relator prevailed.

Accordingly on December 17, 1923, the city engineer made a second written report to the city council, reapportioning the cost against the various tracts of land on the basis of $ 10,410.43 as the actual cost of the sewer and assessing against defendant the sum of $ 639.72. On the same date Ordinance No. 356 was enacted, amending Ordinance No. 348, directing the cancellation of the former tax bills and...