Halsey v. Richardson
| Decision Date | 14 June 1909 |
| Citation | 122 S.W. 326,139 Mo.App. 157 |
| Parties | F. E. HALSEY, Respondent, v. MARIA C. RICHARDSON, Appellant |
| Court | Kansas Court of Appeals |
Appeal from the Buchanan County Circuit Court.--Hon. Henry M. Ramey Judge.
AFFIRMED.
Judgment affirmed.
H. K White for appellant.
(1) The ordinance authorizing the work referred in two sections to the specifications on file in the engineer's office. The undisputed evidence of Engineer Rackliffe, shows that the contract and specifications on file at the time of the passage constituted one document and that after the passage of the ordinance bidders bid with reference to this entire document, and it was therefore a part of the ordinance. Barber Asphalt Co. v. Ullman, 137 Mo. 543; Galbraith v. Newton, 30 Mo.App. 350; Roth v Hax, 68 Mo.App. 283. (2) The clause giving the engineer power to determine at will when the contractor should commence this work, was an attempted delegation of legislative power and rendered the ordinance void. R. S. 1899, sec. 5661. McQuiddy v. Brannock, 70 Mo.App. 546, 547; see authorities cited. (3) If it be ruled that the contract was not incorporated in the ordinance, the ordinance must be construed to require the work to be done in a reasonable time, and the clause of the contract relating to the time of commencement and completion of the contract must yield to the ordinance. R. S. 1899, sec. 5661. (4) The extension ordinance pleaded and in proof was unavailing. First. The time for doing the work had expired when it was passed. Second. Assuming that the time had not passed, the ordinance was not passed till more than seven days after the notice by the engineer. Hund v. Rackliffe, 192 Mo. 312; Ayres v. Schmohl, 86 Mo.App. 349.
Charles F. Strop and Eugene Silverman for respondent.
(1) Where the ordinance does not specify the time for the performance of the work, performance within a reasonable time is sufficient, and the taxbills are valid. Allen v. Labsap, 188 Mo. 692; Heman v. Gilliam, 171 Mo. 258; Hilgert v. Paving Co., 107 Mo.App. 398; Curtice v. Schmidt, 101 S.W. 61; Schibel v. Merrill, 185 Mo. 534. (2) And the question as to whether the contractor has completed the improvement within a reasonable time is one of fact, to be determined by the attending circumstances. Hilgert v. Barber Asphalt Paving Co., supra; Lapsley v. Howard, 119 Mo. 489; State v. Harrison, 53 Mo.App. 346. (3) All intendments are in favor of the judgment. The court, by sustaining the taxbill, found that the work was completed within a reasonable time. James v. Life Ass'n, 148 Mo. 16; Cohn v. Kansas City, 108 Mo. 387; Arnold v. Cason, 95 Mo.App. 426; B. & L. Ass'n v. Grocer Co., 82 Mo.App. 245. (4) The provisions of this contract plainly indicate that time was not of the essence of the contract. The provisions in similar contracts providing for a penalty for failure to complete within the stipulated time has frequently been held to mean that time was not of the essence. The sixth clause of the contract in question, and which is shown on page two of this printed record, provides that it requires the action of the common council to annul or terminate the contract for failure to complete it within the time specified and hence on principle the cases cited under Point I are decisive of this case. (5) And in no case is time of commencement an essential element of the contract, but the time of completion constitutes the essential element. Merine v. Paving Co., 103 S.W. 508. (6) Clauses similar to clause ten of this contract have been before our courts numbers of times, without question, and in at least one case, expressly upheld. Curtice v. Schmidt, 101 S.W. 61; Allen v. Labsap, 188 Mo. 696; Heman v. Gillian, 171 Mo. 265.
JOHNSON, J. ELLISON, J., does not agree that the record shows the facts, in several material respects, to be as stated by us and, therefore, dissents.
Action to enforce the lien of two special taxbills issued in part payment of the cost of certain improvements made on Eighth street in the city of St. Joseph. Each bill was made the subject of a count in the petition; the cause was heard by the court without a jury; judgment was rendered for plaintiff on each count for the full amount demanded, with interest, and defendant appealed.
It is conceded that the taxbills, being regular in form, are sufficient to make out a prima facie case in favor of plaintiff, but their validity is attacked on several grounds in the answer and proof adduced by defendant. The improvement in question was made pursuant to a special ordinance passed by the city council on April 12, 1900, and entitled: "An ordinance to provide for the subgrading, paving, curbing, guttering and laying of sidewalks on Eighth street, from the south line of Olive street to the south line of Mitchell avenue." The ordinance contains no reference to the time of the beginning or completion of the proposed work nor does it contain the details or specifications. It does provide that the improvement shall be made "in accordance with the specifications therefor on file in the office of the city engineer." No point is made that the specifications were not on file at the time of the passage of the ordinance, but one of the defenses we shall presently notice is based on the fact that attached to them and, therefore, on file, was the form of the contract afterward entered into between plaintiff and the city. Among the stipulations of this contract, which was signed by the parties on May 29, 1900, are the following, which appear under the head of "Duties and Responsibilities:"
Under the head of "General Stipulations" is this provision: "If said work shall not be begun when, where, and as ordered by the city engineer, or if the rate at which said work shall be performed shall not, in the judgment of the city engineer, be such as to insure its progress and completion in the time and manner herein stipulated, or if said work shall be wholly or in part improperly constructed, or in case the contractor shall from any cause abandon the work and cease to prosecute the same, then the city engineer shall certify the facts to the common council and the common council shall have the power to declare the contract forfeited, either as to a portion or the whole of said work, and to, at any time, relet the same, or order the reconstruction of the work, in whole or in part if improperly done. "
On the 5th of December, 1900, the engineer, for the first time, notified plaintiff in writing "to commence work within seven days upon the contract between you and the city of St. Joseph for paving Eighth street from Mitchell avenue to Olive street (Ordinance No. 2619) and to finish the same according to contract." December 18, 1900, the city council passed a special ordinance (No. 2935) extending the time for the completion of the work for a period of five months and on April 15, 1901, passed another ordinance further extending the time for a period of four months. The work was completed within the period prescribed in the last ordinance mentioned, was accepted by the city, and the taxbills in payment of the cost thereof, were issued October 2, 1901, and delivered to plaintiff.
The long delay in the performance of the contract after it was made and approved by the city is the foundation of the attack against the validity of the proceedings. To free himself from the imputation of fault on account of this delay, plaintiff introduced evidence which tended to show that very shortly after the contract was ratified, he began its performance by making brick, taking out guttering, resetting the curb and breaking rock for foundation, but could not proceed beyond the preparatory stage because of the failure of the city engineer to lay out the work and set stakes for his guidance. Further, it was shown that plaintiff was directed by the city engineer not to proceed with the paving of the street until after the street railway company had reconstructed its tracks thereon and that on account of its inability to obtain new rails from the manufacturers, the company was delayed in prosecuting the work of relaying the tracks and bringing them to the proper grade. These obstacles in the way of plaintiff continued for some time after the engineer served notice on him to proceed with the performance of the contract. Plaintiff still was unable to obtain the services of the engineer to give him the necessary grade stakes and the street railway company could not and did not perform its task until the following spring. Cold weather set in shortly after December 5th and the ground became frozen to an extent preclusive of the doing of any grading. Such was the situation when the first ordinance was passed which extended the time. When the second ordinance was passed in the following April, the engineer and street railway company were still in...
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