Ford v. Excelsior Springs Land & Waters Co.

• Decision Date: 26 June 1920
• Docket Number: No. 13542.,13542.
• Citation: 223 S.W. 960
• Parties: FORD et al. v. EXCELSIOR SPRINGS LAND & WATERS CO. et al.
• Court: Missouri Court of Appeals

223 S.W. 960

FORD et al. v. EXCELSIOR SPRINGS LAND & WATERS CO. et al.

No. 13542.

Kansas City Court of Appeals. Missouri.

June 26, 1920.

Appeal from Circuit Court, Clay County; Ralph Hughes, Judge.

"Not to be officially published."

Suit by William E. Ford and others,against the Excelsior Springs Land & Waters Company and others. Judgment for plaintiffs, and defendants appeal. Reversed.

Culver & Phillip, of St. Joseph, for appellants.

Craven & Bates, of Excelsior Springs, for respondents.

BLAND, J.

This is a suit by the assignee of certain sewer tax bills to enforce a lien for the amount of the bills against certain property owned by defendants. The ordinance authorizing the work provided that bids should be advertised in the Daily Journal of Excelsior Springs, Mo., for 15 days; that the contract should be let to the lowest and best bidder; that all work should be completed within 90 working days from the execution of the contract; that the successful bidder should give bond in a sum equal to the contract price for the construction of the sewer, to be forfeited if he failed to complete the work within 90 working days from the execution of the contract.

The advertisement for bids was properly completed, there were two bidders and the contract was awarded to the successful bidder. The contract provided that the work should be completed within 90 working days from the date the contract took effect, and, if it was not so completed, $4 per day should be paid as liquidated damages for each and every day after the 90 days that the work was not completed; that the days lost in consequence of injunctions, bad weather, grading, curbing, trenching, by other contractors, corporations, and individuals, and over whom the contractor has no control, organized general strikes, or burning of any plant where materials for the contract were manufactured or made, should be added to the number of days specified in the contract within which the work should be completed.

The contractor gave a bond in the sum of the contract price, but it did not provide that it should be forfeited if the work was not completed within 90 working days, but it provided that if it was not completed within that time $4 per day should be paid to the city as liquidated damages for each day ever the 90 days that the work was not completed. The work was actually completed within 90 days. The trial resulted in a judgment in favor of plaintiffs, and defendants have appealed.

Defendants contend that as the ordinance required the work to be let to the lowest and best bidder, and that as the contract was let on different terms than those prescribed in the ordinance, there was no opportunity for competitive bidding for the contract as it was actually let; that the bidders had no opportunity to bid upon a contract extending the time for the completion of the work beyond 90 days on account of injunctions, strikes, bad weather, etc., and that they had no opportunity to bid upon a contract to the effect that if...