Devers v. Howard

• Decision Date: 14 June 1898
• Citation: 46 S.W. 625,144 Mo. 671
• Parties: Devers, Appellant, v. Howard et al
• Court: Missouri Supreme Court

46 S.W. 625

144 Mo. 671

Devers, Appellant, v. Howard et al

Supreme Court of Missouri, Second Division

June 14, 1898

Transferred from Kansas City Court of Appeals.

Reversed and remanded (with directions).

J. W Peery for appellant.

(1) The clause in the contract authorizing the city to apply any part of the contract price at any time to the payment of claims for work and labor and material, was perfectly legal and valid, and it gave the plaintiff an equitable lien upon the part of the contract price which the city had sequestered or set apart under that provision. Luthy v. Woods, 6 Mo.App. 67; St. Louis v. Keane, 27 Mo.App. 642; Casey v. Gunn, 29 Mo.App. 14; Kein v. School Dist., 42 Mo.App. 462; St. Louis v. Lumber Co., 42 Mo.App. 586; St. Louis v. Lumber Co., 114 Mo. 14. (2) The plaintiff having a clear right to or lien upon the portion of the contract price yet in the hands of the city it was competent for the city to contract and agree with the defendants to pay it to them for the plaintiff. Rogers v. Gosnell 51 Mo. 466; Bliss, Code Plead. 45, 46; Snider v. Express Co., 77 Mo. 523; Ellis v. Harrison, 104 Mo. 277; State ex rel. v. Gas Co., 102 Mo. 472; Rogers v. Gosnell, 58 Mo. 589; Lawrence v. Fox, 20 N.Y. 268; Schuster v. Railroad, 60 Mo. 290; Hatch v. Hanson, 46 Mo.App. 323; St. Louis to use v. Von Phul, 133 Mo. 561. This last case overrules that of Sewer Pipe Co. v. Thompson, 120 Mo. 221, and is, we think, decisive of the case at bar.

Sallee & Goodman and D. J. Heaston for respondents.

(1) The plaintiff is not entitled to recover on the bond sued on in this case, or under the contract referred to, because he was not privy to the contract between the city of Bethany and the defendant, Howard, neither had the city any authority under its charter to make contracts for the benefit of strangers or third parties. Kansas City Sewer Co. v. Thompson, 120 Mo. 218; Kansas City ex rel. v. Carroll, 99 Mo. 360; Howsman v. Waterworks, 119 Mo. 304; Ins. Co. v. Waterworks, 42 Mo.App. 118; Lewis v. Land Co., 124 Mo. 672; State v. Railroad, 125 Mo. 596; Evans v. Grader, 125 Mo. 72; Vrooman v. Turner, 69 N.Y. 280; Counselman v. Henry, 75 N.Y. 102. (2) A city has no authority except such as is conferred upon it by its charter, or such as are absolutely necessary to carry out the objects of its incorporation. A city only acts by ordinance, and ordinances, like private statutes, must be specially pleaded, otherwise courts do not take judicial notice of them. R. S. 1889, secs. 1589 and 1652; Knapp v. Kansas City, 48 Mo.App. 485; Sedalia Gas Co. v. Mercer, 48 Mo.App. 644; St. Louis v. Roche, 128 Mo. 541; State ex rel. v. Sherman, 42 Mo. 210; Butler v. Robinson, 75 Mo. 192; Keane v. Klausman, 21 Mo.App. 485; Lamar v. Hewitt, 60 Mo.App. 314; R. S. 1889, sec. 2077.

Burgess, J. Gantt, P. J., and Sherwood, J., concur.

OPINION

Burgess, J.

This case was appealed from the circuit court of Harrison county to the Kansas City Court of Appeals where the judgment was affirmed, but thereafter the case was certified to this court by the court of appeals, upon the ground that one of the judges of that court was of the opinion that the decision is in conflict with the decision of this court in the case of St. Louis Public Schools v. Woods, 77 Mo. 197.

This is an action upon a bond executed by the defendant Howard as principal, and defendants Vandivert and Phillips as his securities to the city of Bethany, Missouri. On the eighteenth day of June, 1894, Howard entered into a contract with the city of Bethany to dig for it a well on lot four, block seven of Blackburn's addition to said city for the sum of $ 800. At the time of the execution of the contract said Howard as principal, and Ashman H. Vandivert and George L. Phillips as securities, executed and delivered to said city their bond in the penal sum of $ 1,000, conditioned for the faithful performance of the work by Howard and the payment by him for all labor done on said well, and for all materials furnished for or used on the same. The conditions and covenants of the bond as set out in the petition are that, whereas said L. W. Howard had on that day entered into a written contract with said city of Bethany by which he had agreed to dig, wall and complete said well for said city, for the sum of $ 800, the said L. W. Howard to pay for all labor done on said well, and for all material used or furnished for the same, the said well to be dug and walled up and finished according to certain written plans and specification which were made a part of said contract; and if the said L. W. Howard should dig said well according to his said contract with said city of Bethany, and according to the plans and specifications, and should pay for all labor done on said well, and also pay for all material furnished for or used on the same, and should complete said contract in a good and workmanlike manner by the eighteenth day of July, 1894, then said obligation to be void, otherwise to remain in full force and effect.

The petition then proceeds as follows: "Plaintiff further states that said condition in said bond for the payment for all labor done or material furnished in the construction of said well, was inserted therein in pursuance to the provision of the said written contract between said L. W. Howard and said city of Bethany for the sole and express purpose of protecting all persons who should do work upon or furnish material for the construction of said well, and because it was well known to all of the parties to said bond or writing obligatory that said L. W. Howard was wholly and totally insolvent as hereinbefore alleged. Plaintiff further states that, relying upon the said provisions in said written contract between said L. W. Howard and said city, and upon the indemnity and protection provided and offered thereby, and relying solely upon the said conditions and terms of said bond or writing obligatory and knowing that said L. W. Howard was insolvent, he did, after the execution of said contract and said bond and during the construction of said well, furnish to said L. W. Howard the following material of the value stated, and which was by him, the said L. W. Howard, used in the construction of said well to wit:

139 1/2 Perch of stone, at $ 1 per perch

$ 139.50

By Cash

42.60

Balance due

$ 90.00

"That said L. W. Howard has failed and neglected to pay for the same, although often requested so to do, and the whole amount thereof is yet due and unpaid. Plaintiff further states that after the completion of said well, to wit, about the 17th day of August, 1894, he presented his bill for the material aforesaid to the proper officers of said city of Bethany, and demanded and requested said city to protect the plaintiff in his said claim, and to deduct the amount thereof from any balance that might be due to said L. W. Howard for constructing said well; that thereupon said city of Bethany was about to exercise the right conferred upon it by said contract to pay said claims for work and material out of the balance claimed by said defendants to be due on said contract, and was about to pay the claim of plaintiff and others who had furnished materials for the construction of said well, when the defendants and each of them in his own proper person appeared before the board of aldermen of the said city of Bethany on or about the said 17th of August, 1894, and then and there admitted and agreed that they were liable under said condition of said contract and bond for said bills of plaintiff and others who had furnished material for the construction of said well, and that if said city of Bethany would receive and accept said well from them, and would pay to the defendants the sum of one hundred and ninety-six dollars and seventy-five cents the balance due for constructing said well, they, the said defendants, would immediately pay to this plaintiff and the other persons who had furnished material for the constructing of said well, the full amounts of their respective claims and that the agreement of said city of Bethany to accept said well and to pay said balance claimed by the defendants to be due for the construction thereof was upon the express condition that the defendants would pay said claim of plaintiff and others; that but for said agreement upon the part of the defendants L. W. Howard, Ashman H. Vandivert and Geo. L. Phillips, the said city of Bethany would have then and there paid the claim of plaintiff out of the balance due said L. W. Howard from said city; that plaintiff being fully advised of said arrangement between said city and said defendants, agreed to and acquiesced therein, fully relying on the agreement of the defendants to pay the claim of plaintiff; that immediately after said agreement between said city and the defendants hereinbefore alleged and set forth and upon the same day, the defendant ratified and reaffirmed the same to this plaintiff, and promised the plaintiff that they would pay his said claim on the following day. Plaintiff further states that immediately upon the making of said agreement on or about said 17th day of August, 1894, between said city and said defendants, and in consummation thereof, said city did receive and accept said well and did pay to the defendants Ashman H. Vandivert and Geo. L. Phillips, at the instance of the...