Dick v. Riddle

• Decision Date: 06 December 1909
• Citation: 123 S.W. 486,139 Mo.App. 584
• Parties: FRANK DICK and AUGUSTUS GANNON, Partners, Composing the Firm of Dick & Gannon, Appellants, v. EDWARD E. RIDDLE, Respondent
• Court: Kansas Court of Appeals

123 S.W. 486

139 Mo.App. 584

FRANK DICK and AUGUSTUS GANNON, Partners, Composing the Firm of Dick & Gannon, Appellants, v. EDWARD E. RIDDLE, Respondent

Court of Appeals of Missouri, Kansas City

December 6, 1909

Appeal from Macon Circuit Court.--Hon. Nat. M. Shelton, Judge.

Reversed and remanded.

H. P Lander and Bresnahen & West for appellants.

(1) The contract between the plaintiffs and the city is severable and divisible. Johnson v. Duer, 115 Mo.App. 366; Excelsior Springs v. Ettenson, 120 Mo.App. 215; 7 Ency. of Law, pp. 95-7; Page on Contracts, secs. 1483-87. (2) The law contemplates that the contract for curbing shall be separate and divisible from the contract for paving and grading, and that separate taxbills be issued for curbing Laws of Mo., 1891, p. 63; Excelsior Springs v Ettenson, 120 Mo.App. 215. (3) The contract being separate and divisible, the right to recover for the curbing is not conditional upon the performance of the provisions of the contract with reference to paving. See authorities cited under the first subdivision hereof.

Guthrie & Franklin, Frans E. Lindquist and William J. Carlon for respondent.

(1) There is no final judgment on the record in this cause and this appeal must be dismissed since there is nothing to appeal from. The finding of facts and special verdict must be entered of record just like a verdict or it amounts to nothing. It is only a paper in the case and cannot be considered by the court of appeals, especially when there is no bill of exceptions, as in this case. It will be noted in this connection that appellant's abstract does not state at what date the finding of facts was made and it is defective in that regard, because the finding of facts made after the rendering of the judgment is not a finding of facts and is not a part of the record. Bank v. Barbee, 198 Mo. 465; Shoffer v. Dittie, 191 Mo. 387. (2) The abstract of record is fatally defective in that it fails to show that the finding of facts was made and filed at or prior to the time of the rendering of the judgment. It is a part of the record only when made so by a record entry. The only finding of facts found among the papers or in the record is indorsed "Filed May. 1, 1907," while the alleged judgment was entered on April 29, 1907. The material issues in the case which are not found in the special findings of facts are found in favor of the successful party. Bank v. Lumber Co., 102 Mo.App. 75; Redman v. Railroad, 104 Mo.App. 651. (3) In cases where the work is to be done as a unit by one contractor, the rule requires the entire work to be completed before the taxbills can be issued and enforced. Heman Construction Co. v. Loevy, 179 Mo. 471. (4) There must be substantial compliance with the ordinances and contract to authorize a levy of a special assessment, and the burdensomeness or impossibility of full performance is no excuse. Excelsior Springs v. Ettenson, 120 Mo.App. 215. (5) Contract and bond provided for doing the work of paving, grading, guttering and curbing as an entirety--inseparable. Kansas City v. O'Connor, 82 Mo.App. 660. (6) A contract is entire when by its terms, nature and purposes it contemplates and intends that each and all of its parts, material provisions and the considerations are common each to the other and interdependent. 7 Am. and Eng. Law (2 Ed.), p. 95.

OPINION

JOHNSON, J.

This action is on four special taxbills issued by the city of Brookfield, a city of the third class, in payment of the cost of grading, curbing and paving Main street. Defendant owned two lots on the street. A taxbill for $ 64.58 was issued against each lot on account of the grading and paving and one for $ 9.65 against each lot on account of the curbing. The answer pleaded defects in the regularity of the proceedings leading to the issuance of the bills, fraud and collusion between certain city officers and the contractors, and that the work was not done in substantial compliance with the contract. The case was tried to the court and findings of fact were filed as follows:

"1. I am of the opinion the record in the proceedings leading up to and touching the paving involved in this case is sufficient.

"2. I find that there was no fraud or collusion between the plaintiffs Dick & Gannon and the city engineer and his assistant, in the matter of the preliminary estimates for the grading, paving and curbing, or either of them.

"3. I find that the grading and curbing were done in substantial compliance with the plans and specifications and contract put in evidence and are sufficient.

"4. As to the brick used in the pavement the court finds that said brick were wholly insufficient and were not good, sound, vitrified paving blocks as required by the contract and specifications, and that great numbers of said brick were not vitrified but were soft and wholly unfit and have been and are crumbling down and rapidly disintegrating, leaving said pavement inferior and much below the character of pavement required by the plans, specifications and contract and the court therefore finds that said brick were defective and insufficient and that the pavement is not a substantial compliance with the contract."

On these findings the court entered judgment for defendant on all the counts of the petition including those founded on the taxbills issued to pay for curbing.

The sole contention of plaintiffs is that the court erred in refusing to give plaintiffs judgment for the cost of the grading and curbing on account of their failure to perform the work of paving in compliance with the requirements of the contract.

The points made by plaintiffs in their brief are, first, "The contract between the plaintiffs and the city is severable and divisible." Second, "The law contemplates that the contract for curbing shall be separate and divisible from the contract for paving and grading and that separate taxbills be issued for the curbing." Third, "The contract being separate and divisible the right to recover for the curbing is not conditional upon the performance of the provisions of the contract with reference to paving."

The improvement of the street was initiated by a resolution entitled "A resolution declaring the necessity of paving, curbing, guttering and grading that portion of Main street, etc. This was followed by an ordinance entitled "An ordinance providing for the paving, curbing, guttering and grading . . . of Main street, etc."

In response to the published notice for bids, plaintiffs submitted a bid in which they agreed to do the work for a consideration of $ 1.08 per square yard for paving twenty-five cents per cubic yard for grading and thirty cents per lineal foot for curbing. This bid was accepted and a contract was entered into between the city and plaintiffs for the entire improvement at the prices stated. After the...