Coatsworth Lumber Co. v. Owen
| Decision Date | 05 January 1915 |
| Docket Number | No. 13499.,13499. |
| Citation | 172 S.W. 436 |
| Parties | COATSWORTH LUMBER CO. v. OWEN et al. |
| Court | Missouri Court of Appeals |
An ordinance for a street improvement and a contract for the work provided that the work should be completed on or before a designated future date, unless delayed by bad weather. The work was fully completed before the designated date, but there were defects in the work due to the fact that the temperature at times fell below the freezing point while the work was being done. As soon after the designated date as the work could be safely done, the defects were remedied under the direction of the city engineer. Held, that the work was substantially completed in time, and tax bills for the cost thereof were not void.
4. QUIETING TITLE (§ 7) — STREET IMPROVEMENTS — ORIGINAL TAX BILLS — INVALIDITY — REMEDY.
Where an original tax bill for a street improvement is absolutely void for defects apparent on its face and on the face of the tax proceedings, equity will not cancel the bill as a cloud on title.
5. MUNICIPAL CORPORATIONS (§ 485) — TAX BILLS — IRREGULARITIES — CORRECTION — VALIDITY.
The irregularity in an original tax bill for a street improvement because issued against three lots may be corrected by the issuance of amended tax bills against each lot, but the lien arose at the date of the issuance of the original bill.
6. MUNICIPAL CORPORATIONS (§ 485) — TAX BILLS — AMENDED TAX BILLS — SIGNATURES — OFFICER AUTHORIZED TO SIGN.
Amended tax bills issued in lieu of an original bill which was irregular are properly signed by the person who, as mayor, signed the original bill, though his term of office had expired.
7. MUNICIPAL CORPORATIONS (§ 359) — STREET IMPROVEMENTS — CONTRACTS — PERFORMANCE.
A substantial compliance in good faith with the ordinance and contract for a street improvement is sufficient to justify enforcement of the tax bills issued for the work.
8. SET-OFF AND COUNTERCLAIM (§ 29) — TAX BILLS — COUNTERCLAIM.
Where, pending a suit to cancel an original tax bill, amended bills in lieu thereof were issued, the contractor could enforce the lien thereon as a counterclaim within Rev. St. 1909, § 1807, as a cause of action arising out of the transaction forming the foundation of plaintiff's claim or connected with the subject of the action.
9. APPEAL AND ERROR (§ 302) — ENFORCEMENT OF TAX BILLS — JUDGMENT — OBJECTIONS — MOTION FOR NEW TRIAL.
A motion for new trial on the ground that the court, rendering judgment on tax bills, erred in allowing interest thereon from the date of their issue, and that the verdict and finding were excessive, preserved to the party complaining the right to question the findings as to interest.
10. MUNICIPAL CORPORATIONS (§ 518) — TAX BILLS — INTEREST.
Where neither the ordinances authorizing a street improvement or the levying of an assessment and the issuance of tax bills provided for interest, interest was not allowable on the tax bills, though Rev. St. 1909, § 9254, provides that a city may issue special tax bills bearing 8 per cent. interest, to begin 30 days after issue.
Appeal from Circuit Court, Audrain County; James D. Barnett, Judge.
Action by the Coatsworth Lumber Company against D. C. Owen and another. From a judgment for defendants, plaintiff appeals. Conditionally affirmed.
Fry & Rodgers, of Mexico, Mo., for appellant. E. S. Gantt, of Mexico, Mo., Philip S. Gibson, of Grant City, and David Robertson, of Mexico, Mo., for respondents.
This is a suit in equity prosecuted by plaintiff corporation, the owner of certain property abutting upon Jefferson street, in the city of Mexico, Mo., to cancel a special tax assessment thereon in favor of the defendant contractor for the paving and curbing of said street. The original tax bill, which the petition seeks to have canceled, was for $1,137.48, and was issued on May 4, 1909, jointly against three lots belonging to the appellant, though the ordinance levying the special assessment levied it against the lots separately. The suit was instituted on August 20, 1910, and during its pendency — to wit, on April 12, 1911 — the original tax bill was canceled and withdrawn by the city, and a separate tax bill was issued against each lot for $379.16. And thereafter the defendant Owen, the contractor, filed an amended answer alleging the cancellation of the original tax bill and the issuance of the three new bills, and therewith filed three separate counterclaims seeking to enforce the lien of the new tax bills.
It is unnecessary to further notice the pleadings. The suit was originally instituted against both Owen, the contractor, and the city, but the court dismissed it as to the city on the ground that it had no interest in the litigation. The trial before the court, sitting as a chancellor, resulted in a finding for defendant Owen both on plaintiff's bill and on each of said defendant's three counterclaims. Judgment followed accordingly, and the case is here upon plaintiff's appeal.
On July 15, 1908, the city council of the city of Mexico passed a resolution, which was thereafter duly published, declaring it necessary to pave the portion of Jefferson street in question with first-class vitrified paving brick or blocks, and to curb the same with first-class concrete curbing, reference being made to plans, diagrams, and specifications on file with the city clerk, filed by the city engineer; the cost of such improvement to be paid by levying an assessment against the abutting property. On the same day plans and specifications were filed by the city engineer with the city clerk, the former consisting of a plat or map, and the specifications being comprised within and made a part of a contract prepared in blank to be entered into with the successful bidder for such street improvement.
On August 3, 1908, an ordinance was passed authorizing the making of the improvement covered by the resolution aforesaid, to be paid for by the issuance of special tax bills, providing, among other things, for the publication for bids and the letting of the work to the lowest and best bidder. Thereafter the city engineer submitted an estimate of the cost of the improvement, and, upon bids being received, defendant Owen was the successful bidder, and a contract was duly entered into with him of date August 20, 1908. The contractor sublet the work of putting in the curbing to one Hendricks, as the contract permitted. It appears that the work, both upon the paving of the street and the putting in of the curbing, progressed with reasonable speed, and was completed by December 25, 1908, but it seems that the curbing cracked and crumbled in places, requiring it to be repaired, which, on account of unfavorable weather conditions, was not done until April, 1909. This having been done, the city engineer reported that the entire work had been completed in substantial compliance with the contract, and the same was thereupon accepted, and, by an ordinance approved May 4, 1909, tax bills were ordered to be issued to pay the cost thereof.
Such further details of the evidence as it may be necessary to notice in connection with the questions raised on appeal will be referred to in the course of the opinion.
I. The point is made that the resolution declaring the improvement necessary is too vague and uncertain in its terms, in that certain distances and dimensions are not shown; but it is clear that these are sufficiently supplied by the plans and specifications filed by the city engineer in the office of the city clerk, which by specific reference were incorporated into the resolution. See Bridewell v. Cockrell, 122 Mo. App. 196, loc. cit. 203, 99 S. W. 22. An examination of the resolution shows clearly that it fully complies with the requirements of the statute — viz., sections 9254 and 9255, Rev. St. 1909 — applicable to cities of the third class.
II. It is urged that there was no estimate of the cost of the improvement within the contemplation of the statute, supra. But this contention is likewise without merit. The estimate filed by the city engineer gave the estimated cost of paving the street, stating separately the estimated cost per square yard of the foundation, sand cushions, fillers, and brick surface, which aggregated $1.75 per yard for the finished pavement. The cost of the curbing was estimated at 60 cents per lineal foot, and it was estimated that there would be 14,207.2 square yards of paving and 6,546 lineal feet of curbing; the cost of the whole totaling $24,995.60. It is altogether clear that the estimate is sufficient. A number of cases are cited in support of appellant's position, but they are without influence, particularly in view of the recent ruling of the Supreme Court in Boonville v. Stephens, 238 Mo. 339, 141 S. W. 1111, where an estimate was...
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