Jones v. Paul
Decision Date | 19 April 1909 |
Parties | J. J. JONES, Respondent, v. JULIA S. PAUL, Appellant |
Court | Kansas Court of Appeals |
November 16, 1908;
Appeal from Jasper Circuit Court,--Hon. Howard Gray, Judge.
AFFIRMED.
Judgment affirmed.
Gardner & Cameron for appellant.
(1) The general ordinance, together with the contract made time of the essence of the contract, the same as though it was written in the contract. This is settled law in this State. Springfield v. Divi., 80 Mo.App. 574; Herman v. Gillian, 171 Mo. 267 l. c; Paving Co v. Munn, 185 Mo. 569 l. c.; Springfield v Schmook, 12 Mo.App. 489. (2) When time is of the essence of the contract, the city council has no authority to extend the time for completing the contract. And if the work is not completed within the time mentioned in the contract, the taxbills issued in payment of the work are void. The provision that the work must be completed within the time is mandatory. Smith v. Westport, 105 Mo.App. 221; Spalding v. Forsa, 109 Mo.App. 675; Rose v Trestrail, 62 Mo.App. 358. The charter of cities of the third class provides that contracts for improving streets shall be let by competition bidding. R. S. 1899, sec. 5860.
Grayston & Graham for respondent.
(1) The extension of time, granted by the council, on March 26, 1901, having been made before the first period of seventy-five days had elapsed was a valid extension and the work having been completed within the time, as extended, the taxbill was valid. Hund v. Rackliffe, 192 Mo. 324.
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:
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 seventy-five 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 thirty 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 to complete it in the time stated in the contract was unavoidable, owing to unfavorable weather. The facts thus found being supported by substantial evidence are accepted by us as proved and bring us to the consideration of the vital questions of whether, first, the time of completion was of the essence of the contract and, second, if it was, had the council the authority to extend the time by ordinance passed before the...
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