Jones v. Paul

• Decision Date: 16 November 1908
• Citation: 118 S.W. 522,136 Mo. App. 524
• Parties: JONES v. PAUL.
• Court: Missouri Court of Appeals

118 S.W. 522

136 Mo. App. 524

JONES v. PAUL.

Kansas City Court of Appeals. Missouri.

November 16, 1908.

Rehearing Granted, December 7, 1908.

On Rehearing, April 19, 1909.

MUNICIPAL CORPORATIONS (§ 362)—CONTRACTS FOR PUBLIC IMPROVEMENTS—DELAY IN PERFORMANCE.

Under a general ordinance defining the manner in which street improvements should be made, and providing that the acceptance of a bid shall be taken as an award of the contract for the work, and that the street committee shall contract for the completion of the work "within the time agreed upon," the time specified is of the essence of the contract, where it contains no provision for forfeiture if the work is not completed in time; but the city council may extend the time, and such extension will not invalidate special tax bills issued in payment of such improvements.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by J. J. Jones against Julia S. Paul. Judgment for plaintiff, and defendant appeals. Affirmed.

Gardner & Cameron, for appellant. Grayston & Graham, for respondent.

JOHNSON, J.

Action to enforce the lien of a special tax bill issued by the city of Joplin, a city of the third class, in part payment of the cost of grading and macadamizing First street in said city from Amander avenue to Meridian street. The validity of the tax bill is attacked by defendant on the ground that the time for the completion of the improvement was made of the essence of the contract between the city and the contractor, and the improvement was not completed until after the expiration of the time specified.

The ordinance authorizing the work was passed by the city council December 19, 1900, and is as follows:

"Section 1. That First street be improved by bringing to subgrade and macadamizing the same from Meridian street to Amander avenue, as provided by general ordinance No. 38, entitled `An ordinance defining the manner in which the paving, macadamizing, curbing and guttering of streets, avenues, squares, alleys, or other highways or part thereof, shall be done, and the manner in which improvements shall be paid for.' Approved June 13, 1893.

"Sec. 2. The city engineer is hereby authorized and directed to advertise for bids in the Joplin Daily Globe for the bringing to subgrade and macadamizing First street from Meridian street to Amander avenue, according to the plans and specifications now on file in the office of the city clerk, and said work to be done under the supervision of the street committee and city engineer, as provided by general ordinance No. 33, and paid for in special tax bills, there being no money in the city treasury to pay for the same. Also that the bids will be opened by him, in the presence of the council, on the eighth day of January, 1901.

"Sec. 3. This ordinance shall take effect and be in force from and after its approval and publication."

The general ordinance to which reference is made provided: "The acceptance of a bid shall be taken as an award of the contract for the proposed work to the party making the same, and the street committee shall, without delay, enter into contract with such bidder, for the completion of such work according to the specifications for the same and within the time agreed upon." Pursuant to these ordinances, bids were advertised for, and the contract was awarded to W. H. Mahoney as the lowest and best bidder. A written contract between the city and Mahoney went into effect on the 14th day of January, 1900. It required the contractor to complete the improvement "within 75 days from the time this contract goes into effect," but provided no penalty or forfeit for a failure to complete the work in the time stated. The work was not finished in that time, but before its expiration the city council passed an ordinance extending the time 30 days. The cause was tried without a jury, judgment was entered for plaintiff, and defendant appealed. From the declarations of law given, it appears the court found as facts that the work was completed within the period fixed by the last-mentioned ordinance, and that the failure...