Haskins v. City of De Soto

• Decision Date: 03 March 1931
• Docket Number: 21276
• Citation: 35 S.W.2d 964
• Parties: HASKINS v. CITY OF DE SOTO.
• Court: Missouri Court of Appeals

35 S.W.2d 964

HASKINS v. CITY OF DE SOTO.

No. 21276

Court of Appeals of Missouri, St. Louis

March 3, 1931

Appeal from Circuit Court, Jefferson County; E. M. Dearing, Judge.

“ Not to be officially published.”

Action by Charles A. Haskins against the City of De Soto. Judgment for plaintiff, and defendant appeals.

Affirmed.

E. C Edgar, of De Soto, for appellant.

Sam McKay, of De Soto, and Johnson, Lucas, Landon & Graves and Ludwick Graves, all of Kansas City, for respondent.

OPINION

BENNICK, C.

This is an action brought by plaintiff, Charles A. Haskins, a consulting engineer, upon a contract entered into between him and defendant, the City of De Soto, a city of the third class; said contract being one for professional services to be rendered by plaintiff to defendant in connection with the construction of a proposed sanitary sewer system. Following a trial to the court alone without the aid of a jury, a judgment was rendered in favor of plaintiff, and against defendant, in the sum of $4,082.86; and, after the overruling of its motion for a new trial, defendant has duly appealed.

No issue is raised in regard to the sufficiency of the pleadings, and it will be enough to say of the petition that it was drawn in proper form, and of the answer that it denied the execution of the contract, and the liability of the city thereunder.

The evidence, all of which came from plaintiff’s own side of the case, disclosed that in the summer of 1927 plaintiff appeared before defendant’s city council at the request of its mayor, clerk, and one of the councilmen, and stated to the council the terms upon which he would prepare the plans and specifications for the proposed sewer system. Evidently his appearance was at the adjourned meeting of August 29, 1927, for the minutes of the meeting show that at that time a motion was duly made and carried that the mayor be authorized and ordered to enter into a contract with plaintiff for the making of a preliminary survey for a sanitary sewer system, "said contract to contain usual provisions in event sewer system is contracted for and built, but in case no further action is taken, then the said preliminary survey is to cost not more than two hundred and fifty dollars."

Pursuant to such action of the council, plaintiff, and defendant city, acting by and through its mayor, entered into a written contract under date of August 29, 1927, the substance of which, with formal parts omitted, was as follows:

"Whereas, The City desires to undertake a study and have a survey made for the construction of a sewerage system and desires to employ a consulting engineer, to undertake the study of conditions and prepare a preliminary report and estimate of cost of the project, and if it is decided to proceed with the project, to prepare detailed plans, specifications, etc., and to supervise the construction of the same;

Witnesseth, That the said City hereby hires and employs the consulting engineer in accordance with the following agreement:

The Consulting Engineer agrees,

1. To make all preliminary surveys, borings, sketches, and studies necessary to make an adequate and thorough preliminary report and estimate of cost:

2. To prepare such a report with sketches, drawings, and maps with a full and complete description of the location of sewers and sewer districts and of the Outlet sewers and sewage treatment required, and to make an estimate of the cost of construction of the same;

3. To submit four (4) copies of the report to the City with all the maps and drawings and such additional maps and drawings as might be necessary in connection with familiarizing interested citizens with the plan. He also agrees to furnish such other information as he may be able to do, and as requested by the City will be present at meetings designated by the Council for the purpose of making interested persons acquainted with the plan and the estimate;

4. If it is decided to go ahead, the consulting engineer agrees to make such further surveys as are required and to prepare the detailed plans and specifications, bidding forms, bond forms, notice to contractors, and other contract documents necessary in advertising for, receiving bids and awarding contracts;

5. To submit the plans and contract documents to the City for approval and also to secure the approval of the Engineer for the State Board of Health;

6. To be present at the time the bids are opened to tabulate the same and to advise the City with respect to the merits of the various bids tendered and to otherwise assist the City in preparing the bids and awarding the contracts for the construction work;

7. When construction work is begun, to place a competent and experienced engineer in De Soto for inspecting all materials and work performed, staking out work and generally supervising the construction and to represent the City. He will also prepare the monthly estimates of cost upon which the contractor will be paid. At least twice each month during the active construction period, if required, or more often upon the request of the City, to make all of the tests necessary and in addition a final inspection in order to determine whether the work performed and the equipment furnished meets with the plans and specifications;

8. If the City so desires, to furnish the legal procedure necessary in the passing of the various ordinances in connection with the tax bill issue in order that the work may comply with the law in every respect;

9. The charge for all of the preliminary work, in the event the City decides to postpone action for one year or more, will be $250.00, due and payable in cash at the expiration of sixty (60) days after the copies of the report have been submitted to the City and conference held with the city officials. For the final surveys preparation of detailed plans, specifications and contract documents, and including the supervision of the construction, all as outlined above, the charge will be five per cent (5%) of the contract cost of the work, due and payable as follows:

Two and one-half per cent (2 ½ %) in cash when the detailed plans have been completed and approved by the State Board of Health and filed with the City Officials; the remaining two and one-half per cent (2 ½ %) to be paid in equal monthly installments covering the period of construction as outlined by the contractor in his proposal the final installment being due within thirty (30) days after the final inspection and estimate of cost have been reported to the City.

The above proposal in regard to the preliminary work is made only upon the agreement that the engineer be employed to design the final work in case it goes ahead at any time within five (5) years from date.

In the event the City fails to proceed with the project, however, only the preliminary fee will be due and the City will be obligated no further until the work does proceed. In the event the work goes ahead, the $250.00, fee for the preliminary work, as outlined above will be credited to the City and the total charge for preparing the detailed plans and specifications will be five per cent as outlined herein.

It is the intention in this proposal to agree to make a complete and thorough preliminary investigation in order to determine the best plan method for sewering the city and properly disposing of it, all for the cost of $250.00, to the City, and if the work is carried out, to prepare the detailed plans and contract documents and to supervise the construction work for a total cost of 5% of the contract cost and to refund the preliminary fee if the same has been paid."

After the execution of the contract, plaintiff made a preliminary survey of the city, laid out sewer lines, and made borings to determine the location of rock, took the elevation of the ground with reference to the lines of the proposed sewers, furnished maps, and made estimates of the cost, and reported the same to the city, and also advised the city how it might proceed to construct sewers as shown in the plans thus prepared. Such preliminary report was filed by plaintiff on October 24, 1927, as is evidenced by the minutes of the city council of that date.

At an adjourned meeting of the council on November 1, 1927, Ordinance No. 2177 was enacted, establishing a sewer district in defendant city, to be known as sewer district No. 1; and at the same time a motion was made and carried that plaintiff be authorized and directed to prepare and furnish for the city a permanent survey, construction plans, profiles, specifications, and an estimate of cost, for a sanitary sewer system, including a sewage disposal plant, as outlined in the preliminary survey theretofore filed, for use in connection with the construction of a permanent sanitary sewer system as authorized by Ordinance No. 2177.

Meanwhile the plans and specifications called for by the council at its meeting of November 1, 1927, were prepared by plaintiff, and at the regular meeting of the council on December 12, 1927, they were filed by plaintiff, and accepted by the city pursuant to Ordinance No. 2188, which was then and there duly enacted.

At the adjourned meeting of December 28, 1927, Ordinance No. 2189 was passed, providing for the construction of district sewers, including a sewage disposal plant in sewer district No. 1; and at the same time Ordinance No. 2190 (seemingly superseding Ordinance No. 2188) was also enacted, accepting and approving the plans, specifications, profiles, and estimates prepared by plaintiff, and authorizing and directing the clerk to advertise for bids for the construction of the sewers and other appurtenances as described in Ordinance No. 2189. It was provided by...