Jones v. The Barber Asphalt Paving Company
| Decision Date | 06 October 1913 |
| Citation | 160 S.W. 276,174 Mo.App. 393 |
| Parties | CORA SQUIER JONES, Respondent, v. THE BARBER ASPHALT PAVING COMPANY, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. Jas. H. Slover, Judge.
REVERSED.
Judgment reversed.
Scarritt Scarritt, Jones & Miller for appellant.
Gage Ladd & Small for respondent.
This is a suit in equity commenced in the circuit court of Jackson county on March 28, 1908, to cancel certain special tax bills issued by Kansas City, May 24, 1905, in payment of paving Troost avenue from the south line of Thirty-eighth street to the south line of Forty-seventh street. A trial of the issues raised by the pleadings resulted in a judgment for plaintiff in accordance with the prayer of the petition and the cause is here on the appeal of defendant.
Point is made by defendant that plaintiff is not the owner of the property against which the tax bills in question were issued and, therefore, cannot maintain this action, but in the view we take of the case it will not be necessary to discuss that question and we shall treat plaintiff as the owner of the property which abuts on Troost avenue between Thirty-eighth and Fortieth streets as the proper party to prosecute this action.
The city council enacted an ordinance in 1900, establishing the grade on Troost avenue between Thirty-ninth and Forty-seventh streets. Before the thoroughfare came under the jurisdiction of the city it was a county road and had a macadam roadway. The ordinance made important changes in the grade and at various places between Thirty-ninth and Forty-seventh streets the old macadam was on a grade substantially different from that established by the ordinance. Shortly before the proceedings in controversy were initiated the street railway company extended the double tracks of its Troost avenue line south to Forty-seventh street and laid them to conform to the new grade.
On November 2, 1903, a petition for the paving was filed with the city engineer and on the same date the lower house of the common council passed a resolution "declaring the work of paving Troost avenue from Thirty-eighth street to Forty-seventh street to be necessary." The resolution provided:
This resolution which was formally approved by the board of public works, passed the upper house November 9, 1903, went into effect on that date, and was duly published.
On November 2, 1903, an ordinance was passed in the lower house to grade Troost avenue, the full width thereof from Thirty-eighth street to Forty-seventh street "and to the established grade of the same." The ordinance passed the upper house November 9th and was approved by the mayor November 16, 1903. The contract to do the grading under this ordinance was let July 12, 1904, the grading was completed at a cost of $ 8000, and was paid for in special tax bills. The grading covered the full width of the street inclusive of sidewalk spaces and brought the entire street to the established grade.
On December 21, 1903, and pursuant to the resolution we have noted, an ordinance was enacted "to pave Troost avenue from the south line of Thirty-eighth street to the south line of Forty-seventh street." It provided that "the street shall be paved the full width thereof exclusive of all sidewalks," that "the work and improvements shall consist of a genuine Trinidad Lake asphalt pavement to conform in all respects to 'detail Q' of asphalt pavement approved by the board of public works, August 28, 1896," that "the total cost of said pavement shall not exceed the sum of two dollars per square yard," that "the work shall be paid for in special tax bills against and upon the lands that may be charged with the cost thereof according to law," and that "the contract . . . shall guarantee that the same shall be constructed with such materials and in such manner that the same shall endure without the need of any repairs for the period of ten years from and after its completion." It was further provided that the contractor should give a bond securing the performance of the contract. No time for the beginning and completion of the work was stated. The passage of the ordinance was formally recommended by the board of public works. The contract for the paving under this ordinance first was advertised to be let April 4, 1904, but there was no bid. Again, it was advertised to be let July 21, 1904, and on that date the defendant made the only bid but no contract was entered into. Finally the letting was advertised for August 30, 1904, and the contract was let to defendant on its bid to do the work at two dollars per square yard. This was done after the completion of the grading of the street.
The contract, which was confirmed by the council September 12, 1904, contained detailed specifications of the work and also by express provision made the "plans and specifications on file in the office of the city engineer relating to the work herein contemplated . . . a part of this contract and specifications." Referring to "detail Q" the contract provided that "the pavement shall consist of macadam foundation already in place upon the street and sufficient new macadam so as to bring the surface when thoroughly compacted to within three inches of the established grade and cross section of the street." As to the time of doing the work it was stipulated that work "be commenced within ten days from the time the contract binds and takes effect . . . and completed . . . within ninety days after the date of confirmation;" that "in case the contractor shall fail to complete all the work herein contemplated, in accordance with the terms of these specifications, within ninety (90) days as aforesaid, the city engineer shall deduct from the aggregate amount due according to the considerations of this contract an amount equal to ten (10) dollars per day for each and every working day after said ninety (90) days that the work is not completed as aforesaid." That "no allowance will be made for additional time for the completion of this contract unless the contractor shall be delayed or restrained from prosecuting the work, or any and every part thereof, or unless the time is extended by the passage of an ordinance by the common council for the number of days stated in such ordinance," and that "the days work on this contract lost in consequence of injunctions or court proceedings, bad weather, grading, curbing, trenching, by other contractors, corporations or individuals, over whom the party of the first part has no control, organized general strikes, or burning of any plant where the materials for this contract are manufactured or made, shall be added to the number of days specified in this contract within which work shall be completed."
The work was not completed in the time specified in the contract but before the expiration thereof (Dec. 12, 1904) the city, on the petition of defendant, extended the time by ordinance to June 1, 1905, the cause stated in the ordinance being "sewer along street from Thirty-eighth street to Forty-seventh street." It does not appear that the passage of this ordinance was recommended by the board of public works. The work was completed within the time provided in the extension ordinance and according to the plans and specifications.
"Detail Q" to which reference was made in the resolution and ordinance for the paving was one of the details of a general plan for paving upon an old macadam base which was approved by the board of public works on August 28, 1896, and since that date had been on file in the office of the city engineer. It was a blue print on which was drawn general and detailed plans for the laying of a new pavement of either asphalt or brick on old macadam. A general cross section of such repavement was shown followed by five detailed plans lettered respectively "N. Q. P. R. and O." The first three referred to asphalt pavements, the last two to vitrified brick. Specifications were written on the blue print and those relating to "detail N" provided: "The pavement shall consist of the macadam foundation already in place upon the street and sufficient new macadam so as to bring the surface when thoroughly compacted to within 3 1/2 inches of the established grade and cross section of the street.
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