Hilgert v. Barber Asphalt Paving Company

• Decision Date: 30 May 1904
• Citation: 81 S.W. 496,107 Mo.App. 385
• Parties: JOSEPHINE HILGERT, Respondent, v. BARBER ASPHALT PAVING COMPANY, Appellant
• Court: Kansas Court of Appeals

81 S.W. 496

107 Mo.App. 385

JOSEPHINE HILGERT, Respondent, v. BARBER ASPHALT PAVING COMPANY, Appellant

Court of Appeals of Missouri, Kansas City

May 30, 1904

November 9, 1903;

Appeal from Buchanan Circuit Court.--Hon. A. M. Woodson, Judge.

REVERSED.

STATEMENT BY SMITH, P. J.

This is a suit in equity. The substantive allegations of the petition were:

1. That the city of St. Joseph was a city of the second class and that Ashland avenue was a public street in said city on which certain lots, of which plaintiff was owner in fee, abutted.

2. That on January 26, 1901, the common council of said city passed and the mayor approved special ordinance No. 2936 by the first section of which Ashland avenue from the north line of Frederick avenue to the east city limits, and its intersections with other streets and alleys was ordered to "be paved to the full width of the roadway with asphalt pavement curbed and the sidewalk laid in accordance with the specifications therefor on file in the office of the city engineer," etc. By the second section it was declared that the cost of said work should be charged as a special tax against the real estate abutting on that part of said street ordered to be improved. And by the third section the improvement was ordered to be paid for in special taxbills etc.

3. That the specifications referred to in said ordinance amongst other things, provided that the improvement be completed in ninety days after the approval of the contract was confirmed by the common council of the said city.

4. That Ratcliffe, who pretended to be city engineer of said city awarded the contract to the defendant, when he was not in fact at that time city engineer and was without authority to award said contract to defendant; that said contract was subject to the confirmation of the common council of said city and that no contract was entered into between said city and defendant for the performance of the work ordered by said special ordinance other than that awarded by the said Ratcliffe.

5. That by the express terms of said pretended contract defendant was required to furnish all the labor and material to pave said Ashland avenue and to asphalt and curb the same and lay sidewalks thereon, to be completed according to the said specifications within ninety days after the approval of said pretended contract by the common council.

6. That said pretended contract was never confirmed by the common council of said city.

7. That the work under said pretended contract was not completed until August, 1901, and until after the time mentioned in said specifications had expired; and that the common council of said city never at any time extended the time for the completing of the said contract.

8. That the defendant did lay an asphalt pavement on said street, but the work done and materials furnished were voluntary and not under any contract therefor with said city, and that said pavement was not laid in conformity to the requirements of said contract--specifying in what respect.

9. The issue and delivery of the taxbills against plaintiff's lots abutting on the improved part of said street in payment of the cost of said street improvement; that each of said taxbills upon its face appears to be a valid charge and lien against said lots for the cost of said improvement and that said taxbills in truth and fact are for work done by defendant in the manner and circumstances thereinbefore stated; and that by reason thereof the said taxbills were void and constituted a cloud on the title of plaintiff to said lots.

The prayer was that each of said taxbills be declared void and that the same be cancelled and the cloud thereby created on the plaintiff's said lots be removed, and for other proper relief.

To the general denial of the answer was added the following allegations, that is to say:

"And this defendant states that thereafter, on or about the eighteenth day of March, 1901, the said city, acting by and through its officers, thereunto authorized, did award, let and enter into a certain contract with this defendant pursuant to and conformable with the terms of said ordinance No. 2936 for the improvement of that part of the said Ashland avenue, described in said ordinance, and curbing, sidewalk and paving same, which said contract was duly confirmed by ordinance of the said city on or about March 18, 1901; that by the terms of the said contract and the said ordinances said improvements were required to be laid upon and to conform to the established grade of the said street; that the grade of said street had theretofore by said city been duly established by its ordinance entitled: 'An ordinance to establish the grade of Ashland avenue,' etc., duly approved by the mayor of said city; that at the time of entering into said contract, to-wit, on March 18, 1901, said Ashland avenue had not been graded nor the surface thereof brought to the established grade thereof, as provided in said ordinance to establish the grade thereof, and that this defendant was at the time of entering into said contract as aforesaid ignorant of the fact that said street had not been graded to the established grade thereof, and that the said street was not graded or brought to the established grade thereof until the month of July, 1901, but during all said period the surface of said street was about five feet above the established grade thereof.

"The defendant states that the said city, on or about the eighteenth day of March, 1901, entered into a contract with a certain contractor other than and who had no connection with this defendant and who was not under the direction or control of this defendant, to grade that part of Ashland avenue hereinbefore described to the established grade thereof; that said grading contractor entered upon the execution of the said street for that purpose and did not complete the grading, or certain parts thereof, until the month of July 1901; that this defendant was at all times ready and willing upon and after the eighteenth day of March, 1901, to enter upon said Ashland avenue and to make the improvements thereon according to and in strict compliance with the terms of the contract hereinbefore referred to between it and the said city in respect thereto.

"That the said city by its said ordinance number 2936 and the contract between it and this defendant hereinbefore referred to, agreed with this defendant to have the surface of that part of Ashland avenue described in said ordinances upon the established grade thereof on March 18, 1901, and to turn over the said street to this defendant on that date with the surface thereof coincident with the established grade thereof and to allow this defendant to take possession thereof and to proceed thereupon and thereafter with the execution of its said contract, all of which the said city failed to do, in that the surface of that part of said Ashland avenue to be improved as aforesaid was not at the established grade on March 18, 1901, nor thereafter until the month of July, 1901, and that said city, acting by and through its city engineer, refused to allow the defendant to enter upon said street for the purpose of executing its contract until the said street was brought to the established grade thereof, to-wit, until July, 1901; that the defendant at various times during said period attempted to enter upon said street and proceed with the execution of its contract, and was ordered and directed by the said city and its said engineer to cease work thereon until the said street should have been brought to the established grade thereof, which direction this defendant complied with; that this defendant, as soon as the said street was brought to the established grade thereof and as soon as it was allowed to do so by the said city, proceeded without delay to execute the work required by the terms of its said contract and did complete the same according to the said contract within a reasonable time thereafter, to-wit, within sixty days.

"Thereupon the said work was duly accepted by said city and taxbills issued in payment thereof according to the terms of said contract, and that by reason of the premises the said city and the plaintiffs should not be heard to say and are estopped to say that the work provided by the said contract to be done by this defendant was not executed and completed within the time stipulated therefor by the terms of said contract."

The decree was for plaintiff.

Decree reversed.

Scarritt, Griffith & Jones and R. A. Brown for appellant.

Filed lengthy argument.

Culver & Phillip for respondent.

Also filed argument.

OPINION

SMITH, P. J.

It seems to be conceded that the contract for making the improvement was not valid and effective unless confirmed by an ordinance passed by the common council. And the first question raised by the appeal is whether or not the ordinance confirming the contract and purporting to have been passed by the common council on March 18, 1901, is valid. By section 5490, Revised Statutes, the legislative functions of the cities of the second class were vested in a common council composed of two aldermen from each ward. It is further conceded that the common council which passed said confirmatory ordinance would have been a legal body authorized by the statute--the charter of the said city--to exercise legislative functions and to confirm the said contract but for the repealing and amendatory act of March 13, 1901 (Sess. Acts 1901, p. 55), by which said section 5490 was repealed and said common council became functus officio. It is thus seen that five days before said confirmatory ordinance was passed by the common council it was abolished by said repealing and amendatory act and the legislative function of the city...