Coatsworth Lumber Company v. Owen

• Decision Date: 05 January 1915
• Citation: 172 S.W. 436,186 Mo.App. 543
• Parties: COATSWORTH LUMBER COMPANY, Appellant, v. D. C. OWEN et al., Respondents
• Court: Missouri Court of Appeals

172 S.W. 436

186 Mo.App. 543

COATSWORTH LUMBER COMPANY, Appellant, v. D. C. OWEN et al., Respondents

Court of Appeals of Missouri, St. Louis

January 5, 1915

Appeal from Audrain Circuit Court.--Hon. James D. Barnett, Judge.

AFFIRMED (conditionally).

Fry & Rodgers for appellant.

(1) This is a proceeding in in invitum and there should be no departure from legal requirements. Rose v Trestrail, 62 Mo.App. 352; West v. Porter, 89 Mo.App. 153; Schibel v. Merrill, 185 Mo. 550; Construction Co. v. Coal Co., 205 Mo. 81. (2) There was no estimate of the cost of the work as required by the statute. R. S. 1899, sec. 5858, paragraph 8; City of Boonville v. Rogers, 125 Mo.App. 142; Wheeler v Popular Bluff, 149 Mo. 36; City of Independence v Briggs, 58 Mo.App. 323; City of Kirksville v. Coleman, 103 Mo.App. 215; City of De Sota v. Showman, 100 Mo.App. 323; Erie v. Brady, 150 Pa. 462. (3) Time was the essence of the contract. The work was not completed within the contract time, on or before January 1, 1909. An ordinance to extend the time, passed in February, 1909, after the expiration of the contract time, was of no effect, and the tax bills are void. Neill v. Gater, 152 Mo. 585; Hund v. Rockliff, 192 Mo. 312; Heman v. Gilliam, 171 Mo. 258; Schibel v. Merrill, 185 Mo. 550; Paving Co. v. Munn, 185 Mo. 569; Montague v. Kalmeyer & Co., 138 Mo.App. 288; Construction Co. v. Coal Co., 205 Mo. 49. (4) The original tax bill plaintiff asked to be cancelled was void, because it was a joint tax bill against the three lots. R. S. Mo. 1909, sec. 5252. On defendant's answer voluntarily withdrawing and canceling said tax bill, plaintiff was entitled to a decree. (5) The tax bills were not legally issued and were void. All special tax bills shall be issued by the city. R. S. Mo. 1909, sec. 9254. They shall be "signed by the mayor and attested by the city clerk with the seal of the city attached." R. S. 1909, sec. 9257. (6) Plaintiff was not personally liable for the special taxes. It was not a personal indebtedness nor a mutual indebtedness. The tax bills on which defendant recovered judgment were not in existence "at the commencement of the plaintiff's action." Hence not subject of counterclaim. R. S. Mo. 1909, sec. 1807. The tax bills can be enforced only by the statutory action to subject the specific property to the payment of the tax. This statutory remedy which is an action in rem, is the exclusive remedy. The court erred in entering judgment on defendant's counterclaim. City of Clinton v. Henry Co., 115 Mo. 557; Seibert v. Tiffany, 8 Mo.App. 33. (7) The court erred in allowing eight per cent interest, or any interest, prior to date of judgment. R. S. Mo. 1909, sec. 9254. As the council made no provision for interest and the tax bills were not issued for interest, the court erred in adjudging interest. And especially from date of tax bill when even the council could not have required interest until 30 days after April 12, 1911. R. S. 1909, sec. 9254, paragraph 10. (8) On the facts plaintiff is entitled to a decree. This being an action in equity, the appellate court will review the entire evidence regardless of the opinion of the trial court. Where material was not used or the work done as required by the contract, the collection of the tax bills will not be enforced. Schibel v. Merrill, 185 Mo. 550; Coulter v. Construction Co., 131 Mo.App. 235; Cole v. Skrainka, 37 Mo.App. 427, 105 Mo. 303; Herman v. Gerardi, 96 Mo.App. 231; Traders Bank v. Payne, 31 Mo.App. 512; Heman v. Franklin, 99 Mo.App. 346; McGath v. St. Louis, 215 Mo. 207.

E. S. Gantt, Philip S. Gibson and David H. Robertson for respondent Owen.

(1) The preliminary resolution was sufficient. By reference the plans and specifications were incorporated in the resolution. They were on file at the clerk's office. Bridewell v. Cockrell, 132 Mo.App. 203. (2) The estimate is sufficient. Gratz v. Kirkwood, 165 Mo.App. 209; Boonville v. Stephens, 238 Mo. 339, 355. (3) The work was completed in contract time. The work was actually all done before January 1, 1909, but weather conditions ruined portions of the curbing and the work thereafter done was merely repair. However, days lost by bad weather were by the ordinance for the work, number 330, to be added to the time. As the work of curbing could not be done until April, 1909, on account of freezing, the time was automatically extended. If the curbing had been stopped at the beginning of freezing weather the contractor would have had the right to postpone the completion until warm weather. However, he attempted to continue with the work and when the freezing weather ruined part of it he was entitled to wait until warm weather to conclude. Pentice v. Schmidt, 202 Mo. 703. The ordinance exhibit 8 is not an attempt to extend the time. The bad weather had already extended it. The ordinance simply recognized this fact and postponed acceptance and issuance of the tax bills until the contractor had remedied the defects caused by bad weather. (4) The tax bills set out in the defendant's answer were legally issued. It was within the power of the person who as mayor issued the original tax bills, to amend the same to conform to the requirements of the statute, after he ceased to hold the office and no other person could sign them. Kiley v. Cranor, 51 Mo. 541; Galbreath v. Newton, 45 Mo.App. 312; Riley v. Stewart, 50 Mo.App. 494; Morley v. Weakley, 86 Mo. 450; Stadler, Admx. v. Roth and Meyer, 59 Mo. 400. (5) The tax bills upon which the respondent recovered judgment were a proper subject for a counterclaim in this action. Page and Jones "Taxation and Assessment," sec. 1445, page 2102; Kendig v. Knight, 14 N.W. 78; Smith v. Des Moines, 76 N.W. 836; Henman v. McNamara, 77 Mo.App. 1; The City of Kansas City to the use of Coates v. Ridenour, et al., 84 Mo. 253; Swope v. Weller, 119 Mo. 556. (a) The cause set out in the counterclaim was in existence at the time of the commencement of the action. Cases cited under point 4. (b) The counterclaim in the case at bar comes under the first division of section 1807 of R. S. of Mo. 1909, "cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action." A counterclaim coming within this clause need not exist at the commencement of the action. California Creameries Co., Limited, v. Pacific Sheet Metal Works, 164 F. 978; Smith v. French, 13 N.C. 1; 53 S.E. 435. (6) The court properly allowed interest at eight per cent on the tax bills. (7) The contractor cannot be held to a literal compliance with the terms of the contract; substantial compliance is all that is required. Cole v. Skrainka, 105 Mo. 309; Sheehan v. Owen, 82 Mo. 458; Meyers v. Wood, 173 Mo.App. 577; Trimble v. Stewart, 168 Mo.App. 276; Steffen v. Fox, 124 Mo.App. 635; City of St. Louis v. Rueckling, 232 Mo. 23.

ALLEN, J. Reynolds, P. J., and Nortoni, J., concur.

OPINION

ALLEN, J.

--This is a suit in equity, prosecuted by plaintiff corporation, the owner of certain property abutting upon Jefferson street in the city of Mexico, Missouri, 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 cancelled, was for $ 1137.48, 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 cancelled 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...