Heman v. Gilliam

• Decision Date: 24 December 1902
• Parties: HEMAN et al. v. GILLIAM et al., Appellants
• Court: Missouri Supreme Court

71 S.W. 163

171 Mo. 258

HEMAN et al. v. GILLIAM et al., Appellants

Supreme Court of Missouri, First Division

December 24, 1902

Appeal from St. Louis City Circuit Court. -- Hon. H. D. Wood, Judge.

Affirmed.

Luther Ely Smith for appellant.

(1) The court erred in refusing defendant's sixth instruction. Defendant was allowed no opportunity to be heard as to the benefits to his property from the improvement made, and the assessment and taxbill issued therefor are in direct violation of the Constitution of the United States. U. S Constitution, 14 Amendment, sec. 1; Wilson v Trenton, 61 N. J. L. 599; 16 Am. St. Rep. 716; Ramish v. Hartwell, 58 P. 459; Hutchinson v Storrie, 51 S.W. 848; Norwood v. Baker, 172 U.S. 269; Tidewater Co. v. Coster, 18 N.J.Eq. 518; Bogert v. City of Elizabeth, 27 N.J.Eq. 568; Barnes v. Dyer, 56 Vt. 469; charter, art. 6, secs. 14-16, 18, 24, 25. (2) The court erred in refusing defendant's third instruction. Where time is made of the essence of the contract and there is failure to comply substantially with the terms of the contract in regard to time, there can be no recovery upon a special taxbill issued for work done thereunder. Strict compliance with the law and the terms of the contract is necessary to justify a recovery. Neill v. Gates, 152 Mo. 587; Rose v. Trestrail, 62 Mo.App. 352; McQuiddy v. Brannock, 70 Mo.App. 535; Trust Co. v. James, 77 Mo.App. 616; Whittemore v. Sills, 76 Mo.App. 248; Kansas City v. McDonald, 73 Mo.App. 439; Ayers v. Schmohl, 86 Mo.App. 350; City of Springfield to use v. Davis, 80 Mo.App. 574; Mason v. DesMoines, 108 Iowa 662; Carthan v. Lang, 69 Iowa 386; Owens v. Heydenfeldt, 6 P. 423; Beveridge v. Livingstone, 54 Cal. 54; St. Louis to use v. Clemens, 43 Mo. 403; Philadelphia v. Jewell, 135 Pa. St. 329; Ruggles v. Collier, 43 Mo. 365; Traders' Bank v. Payne, 31 Mo.App. 512; Meyer v. Wright, 19 Mo.App. 283; Brock v. Luning, 89 Cal. 316; Raisch v. San Francisco, 80 Cal. 5; Fanning v. Schammel, 68 Cal. 428; Dougherty v. Coffin, 69 Cal. 454; Wickwire v. Elkhart, 144 Ind. 305; Fulkerson v. Eads, 19 Mo.App. 620; Davis v. Smith, 15 Mo. 467; Paradine v. Jane, Aleyn 26; Harmony v. Bingham, 2 Kernan 99; Harrison v. Railroad, 74 Mo. 371; Brinkerhoff v. Elliott, 43 Mo.App. 185; White v. Railroad, 19 Mo.App. 400; Beattie v. Coal Co., 56 Mo.App. 221; Const. Co. v Geist, 37 Mo.App. 509; Leach v. Cargill, 60 Mo. 316; Kiley v. Oppenheimer, 55 Mo. 374; Kansas City v. Swope, 79 Mo. 448; City of Lowell v. Wentworth, 6 Cush. 221; City of Dubuque v. Wooten, 28 Iowa 571; Stifel v. Cooperage Co., 38 Mo.App. 340; Dennison v. Kansas City, 95 Mo. 429; Kansas City v. Ratekin, 30 Mo.App. 422; Kinealy v. Gay, 7 Mo.App. 204; Cooley on Const. Lim., 78; Railroad v. Apperson, 97 Mo. 307; St. Joseph v. Landis, 54 Mo.App. 322; Cent. Dict., 1148. (3) The court erred in refusing defendant's motion for nonsuit and fourth instruction. There is no authority under the charter of St. Louis or of the State of Missouri for an assessment against defendant's property for the pavement of an alley. Charter St. Louis, art. 6, sec. 18; Mun. Code 1901, 264; Murnane v. St. Louis, 123 Mo. 485; Charter St. Louis, art 6, sec. 14; Laws 1893, p. 59; Ritterskamp v. Stifel, 59 Mo.App. 510. (4) The court erred in admitting special taxbill No. 6302 in evidence, without explanation of the alteration which it bore on its face. Holton v. Kemp, 81 Mo. 661; Burnett v. McCluey, 78 Mo. 687; McCormick v. Fitzmorris, 39 Mo. 25; Kelly v. Thuey, 143 Mo. 434; Paramore v. Lindsay, 63 Mo. 67; Matthews v. Coalter, 9 Mo. 705; Lubbering v. Kohlbecher, 22 Mo. 596; Sweitzer v. Banking Co., 76 Mo.App. 1; Finney v. Turner, 10 Mo. 207; Land & Lumber Co. v. Moss Tie Co., 87 Mo.App. 174; Stillwell v. Patton, 108 Mo. 360; Patterson v. Fagan, 38 Mo. 84; Kefferstein v. Knox, 56 Mo. 188; Stadler v. Roth, 59 Mo. 403; Western Brew. Ass'n v. Fitzmaurice, 7 Mo.App. 283; Warren v. Layton, 4 Har. (Del.) 404; Bank v. Cook, 2 Kulp (Pa.) 134; Den v. Mason, 1 N. J. L. 10; Collins v. Ball, 82 Tex. 259; Whitsett v. Womack, 8 Ala. 466; Muller v. Luco, 80 Cal. 257; Stoner v. Ellis,, 6 Ind. 752; Cole v. Hills, 44 N.H. 227; Hay v. Douglas, 32 N.Y.S. 49; Burgwin v. Bishop, 91 Pa. St. 336; Van Dusen v. Thomas, 10 W'kly Notes Cas. (Pa.) 190; Kiser v. State, 13 Tex.App. 201; Collins v. State, 16 Tex.App. 274; Rodriguez v. Haynes, 76 Tex. 225.

Hickman P. Rodgers for respondents.

(1) The assessment was according to the frontfoot rule and therefore valid. Nor was notice or opportunity to the property-owner, concerning hearing as to benefits, necessary. Barber Asphalt Paving Co. v. French, 158 Mo. 534. (2) The municipal authorities of St. Louis had the power under the charter to require the improvement of the alley and to levy special assessment therefor in the manner adopted in this instance. Charter, art. 6, secs. 14, 15, 18 and 25, pp. 2511, and 2512, 2 R. S. 1899; Endlich on Inter. of Statutes, sec. 1, p. 1; sec. 35, p. 44; sec. 245, p. 321; sec. 251, p. 335. State ex rel. v. Marsh, 48 Mo.App. 560; St. Joseph v. Landis, 54 Mo.App. 315; Ross v. Railroad, 111 Mo. 18; Bank v. Skeen, 101 Mo. 683; St. Louis v. Lane, 110 Mo. 254; Kone v. Railroad, 112 Mo. 34. (3) The alteration complained of does not vary the meaning of the instrument or materially effect its operation; therefore, its value as evidence is not impaired; and by whom, and with what intent an alteration was made, are questions of fact for the jury. 2 Parsons on Contracts, p. 839; Western Bldg. Assn. v. Fitzmaurice, 7 Mo.App. 283; Williams v. Jensen, 75 Mo. 681. (4) The description of the ground charged with the lien is sufficient, in view of all the evidence in the case, to identify the same. Brown v. Walker, 11 Mo.App. 226; S. C., 85 Mo. 262. (5) The court committed no error in refusing defendant's third instruction for the reason that there was no evidentiary basis for the same. McAtee v. Vanlandingham, 75 Mo.App. 45. The ordinance, by virtue of which the contract was made, contained no provision as to the time for completion of the work.

OPINION

BRACE, P. J.

This is an appeal by the defendant from a judgment of the St. Louis City Circuit Court in favor of the plaintiffs for the sum of $ 22.75, in an action (commenced before a justice of the peace and taken by appeal to that court) on a properly certified special taxbill in words and figures as follows:

"Special Taxbill.

Office of

"President of Board of Public Improvement,

St. Louis, October 14, 1897.

"John A. Gilliam (owner), To Aug. and John C. Heman (contractors), Dr.

"For work done on alley from Whittier street to Pendleton avenue, and between Delmar Blvd. and Morgan street. Chargeable against lot No. Pt. 36 and 35, in city block No. 3756, said ground having an aggregate front of 32.0 feet, by a depth of 150.0 feet, bounded north by alley, east by Hyman, south by Delmar Blvd., and west by Fisher.

"Under the authority of the charter and of ordinance No. 18271, and under contract No. 4444, as follows, viz.:

Concrete,

Price

Total.

foundation, 108.82 squares,

$ 4.50.

$ 489.69

Paving with vitrified paving

brick, 108.82, squares

9.49

1,032.70

Total cost of work,

$ 1,522,39

Total frontage

Rate per

Feet

Amount.

taxed

front foot

front of

lot taxed

1,452.91 feet.

$ 1.04782

32

$ 33.55

(1) On the trial the defendant objected to the introduction of the taxbill in evidence "because of an alteration evident upon the face thereof." The objection was overruled, and this is assigned as error.

In the original taxbill brought by consent to this court for its inspection, in the description by lot the letter P faintly appears before the figures "35" as though the description had been originally written "Lot No. Pt. 36 and P. 35" and the letter "P" attempted to be erased or rubbed out. And this is the alteration complained of. As this part of the description however, was general, obscure and indefinite, whether the faint "P" be read into it or left out, and was immediately followed by a particular, definite and correct description of the lots charged with the tax, and owned by the defendant, the alteration, if it can be so called, was immaterial, and the trial court did not err in overruling the objection. In such case the general is limited and controlled by the particular description. [4 Am. and Eng. Ency. Law (2 Ed.), p. 799 c.]

(2) Ordinance No. 18271, approved January 24, 1896, authorized and directed the board of public improvements to cause the alley in question "to be graded; the roadway to be paved with vitrified paving brick laid on a concrete base" in accordance with specifications therein set out, and provided that:

"Sec. 4. The cost of the brick pavement and of the concrete herein required shall be charged as a lien upon the adjoining property, fronting or bordering on the improvements herein provided for, and shall be paid by the owners thereof. When said work is completed the president of the board of public improvements shall compute the cost thereof and levy and assess the same as a special tax against each lot of ground chargeable therewith in the names of the owners thereof, respectively, in the proportion that the linear feet of each lot fronting or bordering on said improvement bears to the total number of linear feet of all property chargeable with the special tax aforesaid, and shall make out and certify to the comptroller, on behalf of the contractor, bills of such cost and assessment accordingly, as required by law.

"Sec. 5. The cost of the grading shall be paid by the city of St. Louis, and the sum of seventy-nine dollars is hereby appropriated on account thereof, payable out of the fund set apart for street improvements."

The defendant asked the court to declare the ordinance invalid upon two grounds: First,...