Gast v. Langston

• Decision Date: 02 April 1929
• Docket Number: No. 20412.,20412.
• Citation: 15 S.W.2d 353
• Parties: GAST et ux. v. LANGSTON et al.
• Court: Missouri Court of Appeals

15 S.W.2d 353

GAST et ux. v. LANGSTON et al.

No. 20412.

St. Louis Court of Appeals. Missouri.

April 2, 1929.

Rehearing Denied April 16, 1929.

Appeal from Circuit Court, St. Louis County; G. A. Wurdeman, Judge.

"Not to be officially published."

Action to cancel a special tax bill by Renatus M. Gast and wife against Ralph W. Langston and others. From a judgment dismissing plaintiffs' bill, they appeal. Affirmed.

Diehm, Fickeissen & Burch and W. K. Koerner, all of St. Louis, for appellants.

Herbert E. Bryant, of St. Louis (Richard F. Ralph, of Clayton, and Clarence S. Palmer, of Kansas City, of counsel), for respondents.

SUTTON, C.

This is an action to cancel a special tax bill, issued by the city of Ferguson, which is a city of the fourth class, against the property of the plaintiffs, in the sum of $264.58, on account of the construction of a sewer in sewer district No. 10 of said city, pursuant to ordinances duly enacted by said city. The trial resulted in a judgment dismissing plaintiffs' bill, and, from this judgment, the plaintiffs appeal.

Ordinance No. 1052, which was approved on February 18, 1924, created sewer district No. 10, and established the boundaries thereof, within which boundaries plaintiffs' property is included. Ordinance No. 1056, which was approved March 3, 1924, directed the mayor of the city to prepare and file plans and specifications and an estimate of the cost of the construction of a sewer in said district. Plans and specifications and estimate of cost were filed by the mayor pursuant to said ordinance No. 1056, on March 18, 1924. Ordinance No. 1063, which was approved March 18, 1924, adopted the plans and specifications and estimate of cost filed by the mayor, and declared the construction of said sewer to be necessary, and authorized its construction. Ordinance No. 1069, which was approved April 5, 1925, directed the city clerk to cause an advertisement for sealed bids for the construction of said sewer to be published in the Ferguson Town Talk, a weekly newspaper printed and published in said city of Ferguson. No bids were received in response to the advertisement made pursuant to this ordinance. Ordinance No. 1170, which was approved September 9, 1925, directed the city clerk to advertise for bids for the construction of said sewer in accordance with the contract forms, plans, specifications, and profiles on file in the clerk's office, and prescribed the notice to be given. The notice prescribed by the ordinance required each bid for doing the work to state the price in detail and to be inclosed in a sealed envelope, and filed before 8 o'clock p. m. on September 21, 1925. It also stated that the time allotted for the completion of the work was five months, that each bid should be accompanied by a certified check for $1,260 to be held as a guaranty that the bidder, in case his bid was accepted, would enter into a contract with the city of Ferguson, within 30 days after the acceptance of his bid, and execute a bond in the sum of $12,000, and that the board of aldermen reserved the right to reject any and all bids. Advertisement was made in accordance with this ordinance, and in response thereto two sealed bids were filed, one by Ralph W. Langston and the other by V. E. Taylor. The bids in due time were opened by the board of aldermen. In the bids the prices were stated in detail, in obedience to the ordinance and in accordance with the estimate of cost. In other words, the price per cubic yard, per lineal foot, per piece, or per pound, of each item of work and materials, as set out in the estimate of cost, was separately stated in the bids. The aggregate amount of Langston's bid, calculated on that basis, was $24,209, and the aggregate amount of Taylor's bid, calculated on the same basis, was $23,962.90. Langston's bid was $1.90 per cubic yard on class A excavation, $1.90 per cubic yard on class B excavation, $1.90 per cubic yard on class C excavation, 50 cents per lineal foot on 8-inch vitrified clay pipe, 66 cents per lineal foot on 10-inch vitrified clay pipe, 78 cents per lineal foot on 12-inch vitrified clay pipe, $1.50 each on Y junctions on 8-inch pipe, $2 each on Y junctions on 10-inch pipe, $2.50 each on Y junctions on 12-inch pipe, $30 per cubic yard on common brick masonry, 6 cents per pound on cast iron, and 9 cents per pound on wrought iron. Taylor's bid was $9.50 per cubic yard on class A excavation, $2.85 per cubic yard on class B excavation, $1.57 per cubic yard on class C excavation, 47½ cents per lineal foot on 8-inch vitrified clay pipe, 62 cents per lineal foot on 10-inch vitrified clay pipe, 75 cents per lineal foot on 12-inch vitrified clay pipe, $1.43 each on Y junctions on 8-inch pipe, $1.90 each on Y junctions on 10-inch pipe, $2.37 each on Y junctions on 12-inch pipe, $28.50 per cubic yard on common brick masonry, 6 cents per pound on cast iron, and 8 cents per pound on wrought iron.

Upon the opening of the bids, on the evening of September 21, 1925, the board of aldermen went into executive session. A motion was made to award the contract to Langston. The motion was declared lost. Thereupon a motion was made to award the contract to Taylor. The motion was declared lost. Taylor was then called before the board and asked whether or not he would accept the contract on the basis of a guaranty that the final total cost would not exceed the lump sum as shown by his bid, and he declined to do this. Langston was then called before the board and asked whether or not he would accept the contract on the basis of a guaranty that the final total cost would not exceed the lump sum as shown by his bid. Langston agreed to accept the contract on that basis. Whereupon the record of the meeting recites that: "Taylor being unwilling to accept the contract guaranteeing the maximum cost and Langston being willing to accept the contract guaranteeing the maximum cost, the board therefore considers Langston as being the lowest and best bidder." Thereupon on motion the contract for constructing the sewer was awarded to Langston. On completion of the work by Langston, ordinances were duly enacted, accepting the work and assessing a special tax against the property included within the district for the cost of constructing the sewer. Pursuant to said assessment, tax bills, including the bill in suit, were duly issued and delivered to Langston. It was admitted at the trial that the bill in suit is valid on its face, and a cloud on the plaintiffs' title. It was also admitted that Taylor was a responsible bidder. Defendant Shaffer appears to be the present owner of the tax bill in suit. It seems that he got the bill through successive assignments from defendants Langston, Bank of Ferguson, and Bank of Sullivan.

Ordinance No. 1177, approved November 2, 1925, purports to accept the said bid of Langston for construction of said sewer, sets forth the contract and specifications to be followed, and authorizes the mayor to enter into such contract with Langston. The contract set forth in the ordinance provides that said Langston shall furnish all labor and materials, and shall do said work in a substantial and workmanlike manner, in conformity with the plans and specifications. It appears that the contract was executed in accordance with said ordinance. The total cost of the work when completed, for which tax bills were issued, amounted to...