Eyermann v. Provenchere
| Decision Date | 04 March 1884 |
| Citation | 15 Mo.App. 256 |
| Parties | AUGUST EYERMANN, Respondent, v. M. J. D. PROVENCHERE ET AL., Appellants. |
| Court | Missouri Court of Appeals |
APPEAL from the St. Louis Circuit Court, ADAMS, J.
Affirmed.
P. WM PROVENCHERE, for the appellants: Property owners are entitled to have contracts complied with, and the commissioner has no power to dispense with contract requirements.-- Schumn v Seymour, 24 N.J.Eq. 147. The time specified in the contract for the completion of the work could not be extended after the time had expired.-- Turner v. Dougherty, 53 Cal. 619; Beveridge v. Livington, 54 Cal. 54; Mahoney v. Branerman, 54 Cal. 570. Plans and specifications showing the work to be done were essential and necessarily should have conformed with the ordinance.-- Kneeland v. Furlong, 20 Wis. 437; Wells v. Burnham, 20 Wis. 112; Miller v. Pearce, 2 Cin. 47. Where an ordinance is to be passed on petition, or certain things are to be observed, they are conditions precedent.--Cooley Const. Lim., *196, and note citing 24 Bart. 427, *528.
T. J. CORNELIUS, for the respondent: The board in recommending, and the assembly " in passing the ordinance, necessarily exercised the discretionary power given by the statute, and must be presumed to have formed an opinion of the necessity or desirableness of the improvement." -- Young v. City of St. Louis, 47 Mo. 494; McCormick v. Patchin, 53 Mo. 33. " The recommendation by the board of the passage of such an ordinance is a sufficient declaration of the necessity of such a sewer." -- Sheehan v. Martin, 10 Mo.App. 285; Eyermann v. Blakesley, 9 Mo.App. 231. The sewer commissioner, having made a clerical error, may correct the same and issue amended tax bills.-- Pendergast v. Richards, Mo. Sup. Ct.; Riley v. Cramer, 51 Mo. 542; Bell v. Hoagland, 15 Mo. 360. The former tax bills were issued before the work required by the ordinance was completed and therefore they were null and void.-- City to use McGrath v. Clemens, 49 Mo. 552; Freem. on Judg. (3d ed.), sects. 268 and 259. -- Pendergast v. Richards, 2 Mo.App. 187, 194.
This is an action upon twenty-six special tax bills executed and delivered to the plaintiff by the president of the board of public improvements of the city of St. Louis, for constructing a sewer and branch sewers in what is known as the Arsenal Street Sewer District No. 9. The ordinance authorizing the construction of this sewer and branch sewer describes its location in the following words: " The main sewer shall be located on the east and west alley, through blocks numbered 2050 and 2051, and shall be made of vitrified clay pipe fifteen inches in diameter, with a branch sewer made of twelve inch vitrified clay pipe on the north and south alley in block No. 2050." The advertisement for bids for the doing of the work recited: " Drawings may be seen, and specifications and forms of contract, and blank forms for proposals may be obtained, at the office of the sewer commissioner." The bid of the plaintiff, upon which the contract was awarded to him, appears to have been made on one of these " blank forms for proposals," and recited: " The undersigned herewith proposes to do all the work necessary in the construction of a sewer in Arsenal Street Sewer District No. 9, advertised as letting No. 291, in accordance with the printed form of contract and specifications for city work," etc. The contract between the plaintiff and the city, under which the plaintiff did the work, describes the work to be done as " the work of constructing a district sewer within Arsenal Street Sewer District No. 9, as by the above mentioned ordinance specified." It also recites that " the said August Eyermann hereby covenants and agrees to do the work above mentioned in substantial and workmanlike manner, in conformity with the plans of such work on file in the office of the sewer commissioner of the city of St. Louis," etc.
The plan of the work, as originally made in the office of the sewer commissioner, required the branch sewer to be located, not in block 2050, but in block 2051. The ordinance was drawn up in the office of the president of the board of public improvements, before being submitted to the municipal assembly, and, by a clerical error in drawing it, the branch sewer was located in block 2050, and not in block 2051; and the ordinance, as thus drawn, passed, was approved, and the contract was let under it. Now, it seems that the contractor followed the plan of the work, as he found it on file in the office of the sewer commissioner, and it resulted that he constructed the branch sewer in block No. 2051, instead of block 2050. It seems that the mistake was not discovered until after the work was completed. At all events, the work, as thus completed, was approved, and special tax bills therefor were issued to the plaintiff by the president of the board of public improvements, upon which the plaintiff brought an action against the same parties defendant who are parties defendant to the present action. In that action, the court gave an instruction to the effect that if the ordinance provided for the construction of a branch sewer on the north and south alley in block 2050, and no sewer had ever been constructed in said north and south alley, the plaintiff could not recover; and judgment was thereupon rendered for the defendants. The date of that judgment was December 14, 1881.
Thereafter, on the 4th of February, 1882, the following order was given by the sewer commissioner to the plaintiff: " You are hereby notified and directed to construct forthwith a sewer of vitrified clay pipe, twelve inches in diameter, on the north and south alley in city block No. 2050, in Arsenal Street Sewer District No. 9, under your contract No. 259, so as to complete the work in said district as called for by ordinance No. 11,036, entitled, ‘ An ordinance to provide for the construction of sewers in Arsenal Street Sewer District No. 9; ’ and on account of unexpected delays and impediments, the time for the completion of the work under said contract is hereby extended to March 10, 1882." This, it should be observed, was nearly two years after the original order of the sewer commissioner to the plaintiff to commence work under the contract, which order was made on the 27th of January, 1880, and required him to commence and complete the work within seven weeks from February 3, 1880. Under this renewed order, the plaintiff constructed the branch sewer in block 2050, as required by the terms of the ordinance, so that it appears that he has constructed the main and branch sewers required by the terms of the ordinance, and also a branch sewer in block 2051, for which no charge against the property owners is made, and for which he gets nothing. He has been put to this delay and extra expense by a clerical error in the office of the sewer commissioner, for which he was in no wise responsible. The plaintiff recovered a judgment in the circuit court. The foregoing statement of facts is sufficient to indicate the objections which the defendants still insist upon. These objections arise chiefly on instructions given and refused.
I. The first is that the court erred in refusing to give the following instruction: " The court declares the law to be, that if the contract alleged by plaintiff was made with and subject to the following condition: ‘ That the work embraced in said contract should be begun within one week after written notice so to do shall have been given to the contractor by the sewer commissioner, and carried on regularly and uninterruptedly thereafter (unless the said commissioner shall otherwise, in writing, specially direct) with such force as to secure its full completion within seven weeks thereafter, the time of beginning, rate of progress, and time of completion being essential conditions of this contract, and if the contractor shall fail to complete the work by the time above specified, the sum of five dollars per day for each and every day thereafter until such completion, shall be deducted from the moneys payable under this contract; that written notice to begin said work was given by the sewer commissioner to the contractor January 27, 1880, to commence the work one week thereafter; that said work was not...
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