Heman v. Larkin

• Decision Date: 29 November 1904
• Citation: 108 Mo. App. 392,83 S.W. 1019
• Court: Missouri Court of Appeals
• Parties: HEMAN v. LARKIN et al.<SMALL><SUP>*</SUP></SMALL>

83 S.W. 1019

108 Mo. App. 392

HEMAN v. LARKIN et al.^*

St. Louis Court of Appeals. Missouri.

November 29, 1904.

SPECIAL TAX BILL — ACTION — PLEADING — ISSUES — QUANTUM MERUIT.

1. Plaintiff sued on a special tax bill to recover for constructing a sidewalk in front of defendant's premises, and tried the case on the theory that he had done the work called for in

the bill, and in the manner and with the materials required. A distinct defense was that the work was not done in accordance with the terms of the contract, in that the quality of brick used was not that specified, but defendant did not avail himself of the right given by Charter of City of St. Louis, art. 6, § 25, authorizing as a plea in reduction of a bill the unworkmanlike nature in which the contract was performed. Held, that after trial on this theory plaintiff could not recover pro tanto for the value of work done, but recovery, if at all, must be for the full value.

Appeal from St. Louis Circuit Court; O'Neil Ryan, Judge.

Action by Harry F. Heman against Mary C. Larkin and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Hickman P. Rodgers, for appellant. Geo. W. Lubke, Jr., for respondents.

REYBURN, J.

This, an action based on a special tax bill issued by the city of St. Louis, was tried on appeal from a justice's court in the circuit court before a jury, which returned a verdict for defendants. The answer of defendants embraced a general denial, a plea of the special statute of limitations, and a counterclaim, the latter of which was excluded by the court at the inception of the trial. The tax bill was read in evidence, being in usual form, and its nonpayment proven, making out the usual prima facie case for plaintiff; and evidence was offered tending to show when the statement and bill were filed in the justice's court, the summons issued, and the usage in such court to make out such writs from day to day, and deposit them in a pigeonhole for due service by the constable. Defendants introduced testimony tending to show that prior to the trial plaintiff repaired the sidewalk concerned. They had been notified by the street commissioner to repair it, and within the time specified in such notice defendants had caused the sidewalk to be repaired, and thereafter it was in good condition. After further evidence of the same tendency, plaintiff objected to its continued introduction, assigning that the action of the street department in requiring defendants to make repairs was final, and not open to inquiry, which position the court upheld. Defendants also introduced testimony that the contract between the city and plaintiff, under which plaintiff performed the work, required the use of first-rate, even-sized, red brick, commonly known as "paving brick," and in the repairs made plaintiff did not employ paving brick of the quality designated, but an inferior different kind of brick; that the sidewalk, which was in dimensions 50 feet in length by 12 feet in width, as repaired by defendants, was entirely torn up by plaintiff, and no new sand put on the bed, but the sand was smoothed, and, excepting a row of one brick wide on three sides and two bricks deep on the curb side next to the street, which was laid with bricks from the old sidewalk, the new bricks put in were soft, known as "salmon bricks," unsuitable for paving purposes, and not of the description provided by the city contract, commonly known as "paving brick"; that the sidewalk was laid by plaintiff in 1897, and some of the bricks of that portion most in use by pedestrians had been worn down one-third of their former thickness, and they absorbed the water in times of rain. In rebuttal plaintiff offered proof that the brick used in the repairing was of the kind and quality required by his contract with the city; that the premises abutting the sidewalk in question were used continuously from the time of making the repairs to the time of trial as a shop for making and repairing wagons, and during such period empty wagons were frequently run across the sidewalk to and from the street to the wagon shop, and at date of trial the sidewalk in front of such premises was in good condition, and reasonably safe for pedestrians' use. The court charged the jury in a series of instructions appropriate to and comprehensive of the issues and exhibiting the opposite theories, including the following at plaintiff's instance: "The jury are further instructed that in making said sidewalk repairs under the contract between plaintiff and the city plaintiff was not required to strictly and literally comply with the specifications for same, and was required to substantially comply therewith; and if you believe from the evidence that the...