City Trust Co. v. Cunningham

• Decision Date: 23 September 1929
• Citation: 20 S.W.2d 930,223 Mo.App. 896
• Parties: CITY TRUST CO., RESPONDENT, v. FLORENCE A. CUNNINGHAM, APPELLANT. [*]
• Court: Missouri Court of Appeals

20 S.W.2d 930

223 Mo.App. 896

CITY TRUST CO., RESPONDENT, v. FLORENCE A. CUNNINGHAM, APPELLANT. ^[*]

Court of Appeals of Missouri, Springfield

September 23, 1929

Rehearing Denied 223 Mo.App. 896 at 905.

Appeal from the Circuit Court of Pemiscot County.--Hon. Henry C Riley, Judge.

AFFIRMED.

Judgment affirmed.

Chas G. Shepard and Moore & Fitch for appellant.

(1) Where a city of the third class, contracts to pave and improve its streets, and to assess the cost thereof against the abutting property, and to issue tax bills against such property, its proceedings will be strictly construed. Brosnahan v. Pitcher, 133 Mo.App. 660; Municipal Securities Corp. v. Gutes, 130 Mo.App. 552, 556. (2) When a municipality orders its streets improved at the cost of the abutting property owner, the proceedings to support the tax bills must strictly follow the law, and if there be doubt as to the validity of the lien such doubts must be resolved against the lien. City of Nevada v. Eddy, 123 Mo. 546, 557-8; City of St. Louis v. Kaine, 180 Mo. 309, 321; City of St. Louis v. Bell Tel. Co., 96 Mo. 623; City of Chillicothe ex rel. v. Henry, 136 Mo.App. 468; McQuiddy v. Brannock, 70 Mo.App. 535; sec. 447, Dillon's Municipal Corporations. (3) If any change is made in the specifications after publishing notice for bids, then a new publication must be made, so as to include such change, and if the new publication is not made a valid contract cannot be let. Maryville ex rel. v. Lippman, 151 Mo.App. 447. (4) Under the facts in this case the city was without power to issue special tax bills and was without power to make said tax bills a lien on the property of defendant. Koch v. Inter-River Drainage District, 257 S.W. 176; Turner v. Springfield, 117 Mo.App. 418; Thrasher v. Kirksville, 204 S.W. 804; Mayes v. Adair Co., 194 S.W. 58. (5) The city could not extend a valid lien for tax bills beyond a line representing one-half of the distance between two parallel streets each of which were being paved. Hesse-Rix Co. v. Krug et al., 6 S.W.2d 507. (6) Where proceedings are regular and authorize the improvement of a public street, but where the work has been done defectively, the court is authorized to ascertain the value of the work done and award a lien for the proportionate value of the work done. Sec. 8323, R. S. 1919; Joplin ex rel. v. Freeman, 125 Mo.App. 717. (7) Where a street improvement work is not completed within the time fixed in the contract under which the work is done, such contract will not authorize tax bills to be issued by the city creating liens on property abutting on such improvements. 4 McQuillen, "Municipal Corporations," sec. 1933; Smith v. Westport, 105 Mo.App. 221; Spalding v. Forsee, 109 Mo.App. 675; McQuiddy v. Brannock, 70 Mo.App. 535; Neill v. Gates, 152 Mo. 592; Rose v. Trestrail, 62 Mo.App. 352; Safe Deposit & Trust Co. v. James, 77 Mo.App. 616.

Ward & Reeves for respondent.

(1) "It is a fundamental proposition that laws, whether State or municipal, are presumed passed in a spirit of justice and for the welfare of the community. It follows they should be so interpreted, if possible, as to further that purpose." (2) The contract was in exact conformity with the advertisement. The cases cited and relied upon by appellant attacking the validity of the contract have all, in effect, been overruled by the same court and also by the Supreme Court. Jones v. Paul, 136 Mo.App. 524; Paxton v. Bonner, 172 Mo.App. 479; Empire Trust Co. v. Stepp, 275 S.W. 982; Mound City v. Shields, 278 S.W. 798; Hund v. Rockliffe, 192 Mo. 324; Paving Co. v. Hayward, 248 Mo. 300.

SMITH, J. Cox, P. J., and Bailey, J., concur.

OPINION

SMITH, J.

The plaintiff sued in this case as the assignee of a tax bill issued by the city of Caruthersville for certain improvements made on a part of Ward avenue. Caruthersville is a city of the third class. The tax bill was issued on the 4th day of April, 1918, for $ 533.29, to bear interest at the rate of six per cent per annum, and was payable in five annual installments.

The petition was in the conventional form upon said tax bill and was filed at the March term, 1921, of the Pemiscot county Circuit Court. On the 23rd day of June, 1928, defendant filed her amended answer in which after a general denial she alleged that the contract entered into between the city of Caruthersville and J. H. Hinerman, the contractor, for doing the street work was not in accordance with the advertisement for bids in that the advertisements for bids made the requirement that the bidder for said work must expressly state in the bid that said work will be completed by December 20, 1917, as ordered by the city council and that said contract provided that "in event any of the material necessary to the paving of said street cannot be secured by the contractor after a faithful effort to do so, time, as the council may deem necessary, shall be given the said contractor to finish said work beyond the time limited in the ordinance contract." And since such provision for extension of time was not in the advertisement for bids, the city council had no right to incorporate in the contract for the work a provision for the extension of time not mentioned in the advertisement for bids and which extension of time gave the contractor an advantage over the other contractors which is fraud in law and vitiated the contract and made the tax bills issued for said work null and void; that said provision written into the contract contrary to the advertisement under which bids were received worked a fraud on both the property owner and other bidders inasmuch as it permitted the successful bidder to receive the price of a short time job when he had the advantage of a long time contract which is a secret matter between the city council and the contractor and deprived the property owner of the opportunity of having the work done at the lowest competitive bid and deprived the other bidding contractors of the opportunity of bidding on the contract on the same terms and conditions as the favored contractor received.

The answer further alleged that after said contract was entered into for doing said street paving, an extension of time was granted said contractor until September 1, 1918, and there being no provision in the advertisement for bids for an extension of time for the completion of the work, the city council had no right to grant such provision in such a contract entered into by and between the city and the contractor, J. H. Hinerman, and the length of the time thus given said contractor to complete said work shows upon its face that the contract was not awarded in accordance with the advertisement for bids and that the successful bidder received an undue advantage over other bidders and the property owners were caused to pay for said work based on a short time contract when in fact the successful bidder was given almost a year more of time in which to complete the work than the advertisement for bids gave other bidders to understand would be allowed and that in fact the work for which the tax bills were issued was not completed until the 30th day of March, 1918, a period of time more than three months longer than the advertisement for bids apprised all bidders that said work would have to be completed.

There was a further allegation that the work of grading and paving said street was not done according to contract, that said paving was put down in such an unskillful manner in violation of the terms of said contract and out of such poor material and with a mixture of cement, sand and gravel not in accordance with the contract so that said street when completed was practically worth-less and of no real benefit to the property owners; that the plans and specifications of said work were not complied with in many instances; that said contractor laid the paving below grade, thinner and weaker and of less value than said pavement would have been if placed according to specifications; that at certain places on the street the pavement was laid higher than it should have been while at other places on the same street the pavement was laid below the grade, by which drainage was cut off and a pond or pool was formed which would hold water several inches deep after each rain over a great part of said pavement, which said water would remain over the pavement until it evaporated and dried up from the wind and sun; that said water standing on said pavement and the manner in which said pavement was contracted and the failure of the contractor to put down a mixture of cement, sand and gravel according to the terms of contract caused said pavement to ravel and wear in holes as vehicles would pass over it, thereby making the pavement practically worthless; that said contractor further violated the provisions of said contract in that much of the pavement was laid during freezing weather and when the temperature was below 32 [degrees] F. for which reason said pavement so laid was defective and of no real value and prayed to be dismissed and that said tax bill be cancelled and that the apparent lien upon defendant's property be cancelled, removed and for naught held.

The plaintiff filed as a reply a general denial.

By the answer thus filed the action was converted into an action in equity, and was tried before the court, and on the 18th day of December, 1928, judgment was rendered against the defendant on her prayer to cancel the tax bill and for the plaintiff on the tax bill in the sum of $ 873.17, which judgment was declared to be a lien upon the land described in the tax bill. Motion for new trial was filed by the defendant and overruled on the 18th day of December, 1928, and appeal granted to this court.

The plaintiff filed the tax bill sued on and had an...