Fellows v. Dorsey
| Decision Date | 02 June 1913 |
| Parties | J. N. FELLOWS, Respondent, v. GEORGE B. DORSEY, Appellant |
| Court | Kansas Court of Appeals |
Rehearing Denied 171 Mo.App. 289 at 303.
Appeal from Boone Circuit Court.--Hon. D. H. Harris, Judge.
Reversed and remanded.
W. H Rothwell and E. W. Hinton for appellant.
(1) The petition fails to state a cause of action for the reason that it fails to allege all of the necessary conditions precedent to a valid special assessment. Irvin v. Devors, 65 Mo. 625; St. Louis v. Rankin, 96 Mo. 497; Joplin v. Hollingshead, 123 Mo.App. 602. (2) The tax bill is void because the preliminary resolution failed to describe or specify the gutter work. City of Bacon, 144 Mo.App. 476; Coulter v. Const. Co., 131 Mo.App. 230; Barber v. O'Brien, 128 Mo.App. 267; Kansas City v Asken, 105 Mo.App. 84; Kirksville v. Coleman, 103 Mo.App. 215. (3) The tax bill was void because the preliminary resolution was not published for seven consecutive days. R. S. 1909, sec. 9255; Mitchell v. Taylor, 143 Mo.App. 683. (4) The tax bill for the work is void because the contract left it to the engineer to determine when work should begin, thus indefinitely delaying completion beyond a reasonable time. Childers v. Holmes, 95 Mo.App. 154; McQuiddy v. Brannock, 70 Mo.App. 535; Ayers v. Schmohl, 86 Mo.App. 349. (5) The tax bill is void because the contract and specifications depart from the preliminary resolution in providing for the construction of a worthless and unserviceable gutter. City v. Bacon, 144 Mo.App. 476. (6) The tax bill was void because the gutter specified in the contract was not reasonably suited to the purpose, and the city council had no power to make an unreasonable contract at the expense of the property owners. Corrigan v. Gage, 68 Mo. 541; Springfield v. Jacobs, 101 Mo.App. 339. (7) The court erred in giving the fourth instruction for plaintiff leaving it to the jury to determine the meaning of sand as used in the contract because it was for the court to construe the contract, in the absence of any evidence of a binding usage varying the meaning. Rogers v. Modern Brotherhood, 131 Mo.App. 353; Martin v. Hall, 26 Mo. 386; Freight Co. v. Howard, 44 Mo. 71. (8) The third instruction for the plaintiff invaded the province of the jury, and withdrew an important evidential fact from their consideration, by informing the jury that defendant must prove a substantial deviation from the contract, and that the subsequent condition of the street would not authorize them to find for the defendant, thus denying the right of the jury to infer bad execution from bad results. State v. Salmon, 216 Mo. 466; James v. Ins. Co., 135 Mo.App. 247; Imboden v. Trust Co., 111 Mo.App. 220. (9) The court erred in placing the ultimate burden of proof on the defendant to disprove substantial performance of the contract, because of the mere prima facie showing made by the tax bill. State v. Buck, 120 Mo. 497; Higgins v. Ry., 197 Mo. 300; Stone v. Perkins, 217 Mo. 600; People v. Cannon, 139 N. J. 132; Jones v. Bond, 40 F. 281.
W. M. Williams and McBaine & Clark for respondent.
(1) Plaintiff's petition states a cause of action. Cushing v. Powell, 130 Mo.App. 177; Paving Co. v. Bath, 136 Mo.App. 555; Const. Co. v. McCormick, 157 Mo.App. 198; Robinson v. Levy, 217 Mo. 498. (2) The preliminary resolution does not fail to sufficiently describe the gutter work. Sec. 5859, R. S. 1899, and Laws of 1907, p. 103; Muff v. Cameron, 134 Mo.App. 607; Walker v. Chicago, 202 Ill. 531, 67 N.E. 369; Gage v. Chicago, 69 N. E. (Sup. Ct. Ill.) 588; McLannon v. Chicago, 218 Ill. 62, 75 N.E. 762; Gage v. Chicago, 237 Ill. 328, 86 N.E. 633; Gage v. Chicago, 225 Ill. 218, 80 N.E. 127. (3) The preliminary resolution was published as required by Sec. 5859, R. S. 1899. Porter v. Pav. & Const. Co., 214 Mo. 1; Mexico v. Lakenan, 129 Mo.App. 180; Rosmussen v. People, 155 Ill. 70, 39 N.E. 606. (4) The time within which the work was to be completed was not left to the discretion of the engineer, and the work was completed in a reasonable time. Halsey v. Richardson, 139 Mo.App. 157; Allen v. Labsap, 188 Mo. 692. (5) The contract and specifications called for the construction of the kind of a street prescribed in the preliminary resolution. There is no departure. The street is not worthless. The fault with the gutter is due to lack of proper drainage upon the street. (6) The fact that the city specified a gutter that was not a suitable gutter for the street improved will not defeat the contractor's right to recover on his tax bills issued for paving the street. Heman v. Ring, 85 Mo.App. 231; Heman v. Franklin, 99 Mo.App. 346; Skinker v. Heman, 148 Mo. 349. (7) Instruction 4, given for the plaintiff does not constitute error. Realty Co. v. Monihan, 179 Mo. 629; Evans v. Mfg. Co., 118 Mo. 553. (8) The trial court did not commit error in giving instruction 3 offered by plaintiff and this instruction was not a comment upon the evidence. Tyler v. Hall, 106 Mo. 323; Nichalson v. Golden, 27 Mo.App. 132. (9) The burden of proof is on the defendant to show that there was not substantial performance of the contract. Bank v. Ridge, 183 Mo. 518; Moberly v. Hogan, 131 Mo. 23; Excelsior Springs v. Ettenson, 120 Mo.App. 215; State ex rel. v. Phillips, 137 Mo. 259, 264; State ex rel. v. Vogelson, 183 Mo. 17, 22; Paving Co. v. Bath, 136 Mo.App. 555. (10) The trial court did not commit error in giving plaintiff's instruction 7. The instruction follows the language of the specifications and puts the issue as to whether the work was done according to the specifications squarely to the jury. (11) Respondent concedes that the judgment should bear six instead of eight per cent; this court should therefore modify the judgment, but the case should not be reversed on that account. Boonville v. Stephens, 141 S.W. 1111. (12) Defendant's answer was a general denial and there was therefore nothing before the court but the validity of the tax bills, and as they were regular and valid the judgment below should be affirmed. Carthage v. Badgley, 73 Mo.App. 123; Vieth v. Planet Co., 64 Mo.App. 207; Bank v. Shewalter, 153 Mo.App. 636; Bambrick Bros. v. McCormick, 157 Mo.App. 198.
--This is a suit to enforce the collection of a special tax bill issued to the contractor J. N. Fellows, for grading and macadamizing Anthony street in the city of Columbia, a city of the third class. The petition contains allegations to the effect that on the 15th day of June, 1908, the city council adopted a resolution declaring the necessity for the work; that due publication of the resolution was made; that the council duly passed an ordinance for the grading and macadamizing of the street; that, in pursuance of the said ordinance, plaintiff entered into a contract on the 8th of August, 1908, with the city to do the work provided in said resolution and ordinance for the sum of $ 3254.568; that he duly performed said contract, and made the improvements by grading, paving and curbing said street; that said work was duly accepted by the council, and assessment for the cost of the work was made by an ordinance levying a special assessment for said improvement and authorizing the tax bills therefor; that the city caused the total cost of the work to be assessed against the lots and tracts of land fronting and abutting on either side of said street in proportion to the front foot, etc., and did cause tax bills to be issued therefor in payment to the plaintiff as such contractor. It is alleged that the tax bill in suit, which was for $ 603.395, was the proportionate part charged against the property of defendant, and then follows a description of the tax bill, which is filed. The answer was a general denial.
On the 15th day of June, 1908, the city council passed a resolution declaring it necessary to grade, pave, curb and gutter Anthony street. The grading, curbing and macadamizing were described in detail. The street was to be twenty-two feet from curb to curb. A sublayer of macadam, five inches deep, was to be laid from gutter line to gutter line, prescribing the materials to be used. Upon this was to be laid a four inch course; no stone to be used whose greatest dimensions exceed one and one-half inches. Upon this layer was to be laid a top course of screened gravel containing about fifteen per cent sand, and no stone which shall exceed one inch in its greatest diameter. . .
The specifications for the gutter were as follows:
On the 16th day of March, 1909, the contract was let to plaintiff for the performance of the work according to the plans and specifications. On the 4th day of January, 1910, the work was reported completed, and the council then passed the ordinance levying special tax bills for the work, including that of the defendant.
The time for the completion of the work was fixed at ninety days from the date on which the engineer notified the contractor to begin work. It was provided that: "Should the contractor fail to complete the work to the satisfaction of the engineer, within the time specified, then there shall be withheld from the money due him on his final estimate, a sum of money equal to ten dollars per day for each and every day of such delay."
The principal controversy was whether the contractor...
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