Hund v. Rackliffe

Citation91 S.W. 500,192 Mo. 312
PartiesHUND et al. v. RACKLIFFE et al.
Decision Date21 December 1905
CourtUnited States State Supreme Court of Missouri

Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Suit by William Hund and others against J. R. Rackliffe and others for the cancellation of certain tax bills. From a decree in favor of defendants, plaintiffs appeal. Affirmed.

James W. Mytton and Chas. C. Crow, for appellants. Vories & Vories, for respondents.

MARSHALL, J.

This is a proceeding in equity to have canceled certain special tax bills issued by the city of St. Joseph to the respondents, for the improvement of Faraon street from the east line of Main street to the west line of Third street, under the provisions of ordinance No. 3339, and the contract entered into in pursuance thereof. The property owned by the plaintiffs and charged with the lien of such special tax bills abutted the improvement. The basis for the relief sought is: First. That the contract required the work to be commenced within 10 days after the approval thereof by the municipal assembly on the 12th of June, 1902, and to be completed within 40 days thereafter, time being of the essence of the contract, and that the work was neither commenced nor completed as so required. Second. That the defendants failed to complete their contract before the issuance of the tax bills, in this: that they made the sidewalk between Third street and the alley 5 feet wide, instead of 10 feet as the contract called for. Third. That the defendants failed to complete their contract before the tax bills were issued, in this: that the contract required the full width of the street to be wholly paved with brick, and that 40 feet of the street was paved or covered with boards or planks instead of brick, at the point where the Chicago, St. Paul & Kansas City Railway crosses the street. Fourth. That the act approved April 12, 1899 (Laws 1899, p. 78), authorizing cities of the second class to improve streets, etc., under which the tax bills in question were issued, is unconstitutional because in violation of section 4 of article 2 and section 30 of article 2 of the Constitution. The answer of the defendants is a general denial, coupled with a special plea that, long before the passage of the ordinance and the execution of the contract, the city of St. Joseph had, by ordinance, granted to said railway company a right to construct its tracks across Faraon street, and, as a portion of said grant had required the railroad company to pave that part of Faraon street occupied by its tracks and 18 inches on each side of its tracks, and to the end of the ties, and that the railroad company had accepted the said ordinance and constructed its tracks, and therefore it was no part of the duty of the defendants to pave said part of the street under said ordinance and contract for the improvement thereof; and, further, that by the terms of ordinance No. 3489, approved April 15, 1902, the time for the completion of the contract was extended by the city for a period of 90 days, and that the defendants fully completed the work in that time.

The case was tried in the lower court upon an agreed statement of facts, which covered all the points in controversy, with the exception of when the work, under the contract, was commenced, and the plaintiffs introduced no evidence on that subject. But the defendants introduced evidence tending to prove that, before the expiration of 10 days after the ordinance was approved, they began the work contemplated, and hauled brick onto the street to be used in the construction thereof. The agreed statement of facts showed that the plaintiffs were the owners of the property affected by the tax bills; that ordinance 3339, aforesaid, provided for the improvement of the street from the east line of Main street to the west line of Third street, except its intersection at Second street and the laying of sidewalks adjoining lot 12 in block 27; that the street was to be graded and paved with vitrified brick, and the work done to be paid for by special tax bills against the property abutting the improvement; that the contract with the defendants for the improvement of the street was duly approved by the municipal assembly on the 12th of June, 1902; that the defendant city is a city of the second class; that the ordinance specified no time for the commencement or the completion of the work, but that the contract provided that the work should be commenced within 10 days after the approval of the contract, and completed within 40 days thereafter, time being of the essence of the contract, but that the days work on the contract lost in consequence of proceedings in court, bad weather, grading, curbing, trenching by other contractors over whom the defendants had no control, organized general strikes, or the burning of any plant where the material for the contract is manufactured or made, shall be added to the number of days specified in the contract for the completion of the work, and further, that the contractors shall not be entitled to any claim for damages for any hindrance or delay from any cause whatever, but such hindrance may entitle them to an extension of time for the completion of the contract sufficient to compensate for the detention, the same to be determined by the city engineer, provided he have notice, in writing, of the cause of the detention; that the contract further provided that "on the day designated for commencement of the work at any point or points on the line thereof, the contractor shall, before disturbing or making any alterations in the present roadway, haul upon the line of the work at each of said points, a sufficient quantity of bricks for the paving of at least the space between the two intersecting streets"; that upon the completion of the work, and acceptance thereof by the city, the said engineer should cause the said work to be measured, compute the cost thereof, and levy and assess the same as a special tax bill against each lot chargeable therewith, and, upon the tax bills being registered in the engineer's office, they should be delivered to the contractors and their receipts taken in full of all claims against the city on account of work; that prior to the 15th of July, 1902, the defendants notified the city that they desired an extension of time, because they were unable to procure the amount of Portland cement required for the work because of the unprecedented demand therefor; and that accordingly, by an ordinance approved July 15, 1902, and numbered 3489, the municipal assembly extended the time for the completion of the work for 90 days; that lot 12 of block 27 lies on the north side of Faraon street between Third street and the alley, and that on the south side of that street, between those points, the sidewalk was not completely reconstructed by the defendant, and that as to 4½ feet of said sidewalk there was an area way, of a permanent character, 4½ feet wide, extending from the alley to within a distance of 10 feet of the west line of Third street, which area way was constructed by the owners of the adjoining lot, with an iron railing, with consent of the city, more than a year before the letting of the contract; that the alleyways between Second and Third streets and between Main and Second streets, and the railway aforesaid, have railroad tracks thereon extending across...

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    ...Springs v. Ettenson, 120 Mo. App. 215, 96 S.W. 701; City of Maplewood v. Martha Inv. Co. (Mo. App.), 267 S.W. 63; Hund v. Rackliffe, 192 Mo. 312, 91 S.W. 500; McCoy v. Randall, 222 Mo. 24, 121 S.W. 31; Barber Asphalt Pav. Co. v. Hayward, 248 Mo. 280, 154 S.W. 140. (3) The delay in performan......
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