Kansas City ex rel. Diamond Brick & Tile Co. v. Schroeder, Van Buren And National Surety Co.

• Decision Date: 22 May 1906
• Citation: 93 S.W. 405,196 Mo. 281
• Parties: KANSAS CITY ex rel. DIAMOND BRICK & TILE COMPANY v. SCHROEDER, VAN BUREN AND NATIONAL SURETY COMPANY, Appellants; McTERNAN-HALPIN ROCK CRUSHING COMPANY, STEWART-PECK SAND COMPANY and HALLIWELL CEMENT COMPANY, Interveners
• Court: Missouri Supreme Court

93 S.W. 405

196 Mo. 281

KANSAS CITY ex rel. DIAMOND BRICK & TILE COMPANY v. SCHROEDER, VAN BUREN AND NATIONAL SURETY COMPANY, Appellants; McTERNAN-HALPIN ROCK CRUSHING COMPANY, STEWART-PECK SAND COMPANY and HALLIWELL CEMENT COMPANY, Interveners

Supreme Court of Missouri, Division Two

May 22, 1906

Appeal from Jackson Circuit Court. -- Hon. Andrew F. Evans, Judge.

Affirmed.

Kimbrough Stone and Frank Hagerman for appellants.

(1) There must be a reversal of the judgment for the brick company. There were four distinct judgments rendered against appellants, the sureties upon the contractor's bond -- one for $ 5,132.25, in favor of the brick company, and separate judgments in favor of each of the three interveners aggregating $ 2,937.86. Here a stipulation has been filed that the judgment in favor of the Diamond Brick & Tile Company against appellants may be reversed and final judgment entered either here or below in favor of said appellants. Nothing remains to be done but to enter a judgment in accordance with this stipulation. Such was the course pursued when a similar situation was presented in Remhardt v Scarritt, 115 Mo. 51. This leaves for consideration the judgments for interveners. (2) The appeals from the judgment of the interveners should be transferred to the Kansas City Court of Appeals. Where there are appeals from interventions the jurisdictional amount is determined from the amount recovered by each intervener, not by the sum total recovered by all the parties to the case. F. L. & T. Co. v Waterman, 106 U.S. 265. Here the aggregate amount recovered by interveners aggregates $ 2,937.86. This is less than the amount necessary to sustain jurisdiction here. (3) Interveners should not have been permitted to intervene. (a) This suit was and could be only to recover for that which was claimed to be due the brick company, and a separate judgment was rendered therefor. Each intervener filed a separate petition, and a separate judgment was rendered in favor of each. Objection was made by motion to each intervener so asserting its right, and the objection was also made by motion for new trial and motion in arrest. The question is therefore presented whether, where one creditor sues, another creditor with an independent claim can intervene in that suit. (b) The right was below upheld upon the authority of section 20, article 9, charter of Kansas City. The charter cannot regulate the practice of the courts. Badgley v. St. Louis, 149 Mo. 122; State ex rel. v. Tel. Co., 189 Mo. 99. (c) The interveners were not necessary parties, nor were they proper parties to this suit. R. S. 1899, sec. 542; Ins. Co. v. Lent, 75 Iowa 522. These interveners are not "interested in the subject of the action and in obtaining the relief demanded." The "relief demanded" here by plaintiff is payment for the brick furnished to it by Schroeder, a matter with which these interveners have absolutely no share or connection; therefore, whether the plaintiff brick company recovered or not cannot affect them. Neither have they "an interest in the subject of the action." Horn v. Water Co., 13 Cal. 62; Speyer v. Themels, 21 Cal. 287; Gradwohl v. Harris, 29 Cal. 154; Stich v. Dickinson, 38 Cal. 611. (4) If for any reason the brick company was not entitled to recover, then there must be a reversal as to the interveners. (5) Upon the merits interveners should not recover. 1. The ordinance directing the improvement and the contract therefor were both illegal and void. The charter of Kansas City (sec. 12, art. 17, pp. 234-235) requires in express words that all city improvements, including such improvements as that in this case, shall be let to the lowest and best bidder. That requirement is mandatory, the city legally cannot provide for the making of any improvement contrary thereto, and all ordinances and contracts in violation therof are absolutely void. McQuiddy v. Brannock, 70 Mo.App. 535; Ruggles v. Collier, 43 Mo. 353; Baha v. Taylor, 36 Mo.App. 427; Schoenberg v. Field, 95 Mo.App. 247; Swift v. St. Louis, 180 Mo. 95; Smith v. Imp. Co., 161 N.Y. 484. 2. Neither the brick company nor either intervener could recover in this case against appellants, because: (a) The contract between the city and Schroeder, the principal, was illegal; (b) The right to recover is based upon the contract; and (c) A surety's liability depends upon the validity of the principal's obligation. (a) No recovery because the contract with the city was illegal. It goes without saying that no right of action can come out of an illegal act. It is not competent for parties to make agreements in violation of an express provision of law. Ordelheide v. Railroad, 80 Mo.App. 357; Woolfolk v. Duncan, 80 Mo.App. 421; Sedalia Board of Trade v. Brady, 78 Mo.App. 585; Swing v. Cider, etc., Co., 77 Mo.App. 391; Guenther v. Dewein, 11 Ia. 133; Reynolds v. Nichols, 12 Ia. 398; Pease v. Welsh, 39 N.Y.S. Ct. 514; Hale v. Henderson, 23 Tenn. 199. (b) No recovery because the right to recover is based upon that contract. Tyler v. Larimore, 19 Mo.App. 458; Kitchen v. Greenbaum, 61 Mo. 110; Parsons v. Randolph, 21 Mo.App. 353; Harrison v. McClerney, 32 Mo.App. 481; Katch v. Hanson, 46 Mo.App. 323; Kansas City School Dis. v. Shiedly, 138 Mo. 672; Gunter v. Leckey, 30 Ala. 591; Phalen v. Clark, 19 Conn. 421; Scott v. Duffy, 14 Pa. 18; Buck v. Albee, 26 Vt. 184; Melchior v. McCarty, 31 Wis. 252; Wells v. McGeath, 71 Wis. 196; DeWitt v. Lauder, 72 Wis. 120. "Where a contract grows immediately out of, and is connected with, an illegal or immoral act, a court of justice will not lend its aid to enforce it." Toler v. Armstrong, Fed. Cas. No. 14078, affd. in 11 Wheat. 258; Wooton v. Miller, 15 Miss. (7 Smed. & M.) 380; Buckingham v. Fitch, 18 Mo.App. 91; Leavitt v. Blatchford, 5 Barb. 9; Ball v. Davis, 1 N.Y.S. 517; Buck v. Albee, 26 Vt. 184; Deans v. McLendon, 30 Miss. 343; Barton v. Plank Road Co., 17 Barb. 397; Eberman v. Ritzel, 1 Watts & S. 181; Armstrong v. Toler, 11 Wheat. 258; Columbia Bridge v. Kline, 4 Clark 39; Branch v. Haas, 16 F. 53; Howell v. Fountain, 3 Ga. 176; Woolfolk v. Duncan, 80 Mo.App. 421. A contract growing out of an illegal transaction is tainted with the illegality, though it be in fact a new contract. Woolfolk v. Duncan, 80 Mo.App. 421; Hayden v. Little, 35 Mo. 418; Gwinn v. Symes, 61 Mo. 335; Sumner v. Sumner, 54 Mo. 440; Bick v. Seal, 45 Mo.App. 475. (c) No recovery against sureties because their liability depends upon the validity of the principal's obligation. The contract betwen the city and Schroeder being illegal and void, and plaintiff's right to recover being based upon that contract, there can be no recovery against these defendants, who were sureties of Schroeder in said contract. The rule is that the surety's liability depends upon the validity of the obligation of the principal; if, for any reason, it is invalid, then the surety cannot be held. Railroad v. Smith, 27 Mo.App. 377; Hemery v. Marksberry, 57 Mo. 403; Heman v. Francisco, 12 Mo.App. 559; Macey, etc., Co. v. Heger, 195 Pa. 125; Mound v. Barker, 71 Vt. 253; Riley v. Jordan, 122 Mass. 231; Ernst v. Crosby, 140 N.Y. 364; Prather v. Smith, 101 Ga. 283; Edwards Co. v. Jennings, 33 S.W. 585; Kansas City v. O'Connor, 82 Mo.App. 655; Brandt on Guaranty and Suretyship, sec. 121; Chitty on Contracts, 499; Bank v. Kingsley, 2 Doug. 281; Ames v. Maclay, 14 Ia. 281; Smith v. Dickinson, 25 Tenn. 261; Janett v. Martin, 70 N.C. 459; Evans v. Roper, 74 N.C. 639; Joslyn v. Dow, 19 Hun 494; Kimball v. Newell, 7 Hill 116; Fisher v. Salmon, 1 Cal. 413; Bank v. Bank, 93 Ia. 650; Bennett v. Corey, 72 Ia. 476; Rice v. Tolman, 60 Ill.App. 516; Goodwin v. Kent, 201 Pa. 41. 3. Plaintiffs should not have recovered against these defendants in this proceeding for the reason that, the ordinance and contract being illegal, the city had no power to make provision in the contract for the benefit of the materialmen, and said provision is absolutely null and void: (a) Because of the lack of said power on the part of said city; (b) Because there is no such thing as a common law obligation on the part of a municipal corporation. Harbery v. Arnold, 78 Mo.App. 237; Ins. Co. v. Trenton, 42 Mo.App. 118; Howsman v. Trenton, 119 Mo. 304; St. Louis v. Von Phul, 133 Mo. 561; Hicks v. Hamilton, 144 Mo. 495; Devers v. Howard, 144 Mo. 671; Street v. Goodale, 77 Mo.App. 318; Armstrong v. School Dist., 28 Mo.App. 169; Crone v. Stinde, 68 Mo.App. 122; Vrooman v. Turner, 69 N.Y. 280; St. Louis v. Footer, 52 Mo. 513; Forry v. Ridge, 56 Mo.App. 615. 4. The fact that the contract of the city was dual in its nature and created distinct and separate obligations, one in favor of the city and the other of the laborers and materialmen, does not help the latter, because the illegality complained of here is in the making of the contract and not in its performance. School Dis. v. Livers, 147 Mo. 581; Bethany v. Howard, 149 Mo. 513; Griffith v. Rundle, 23 Wash. 453; Dewey v. State, 91 Ind. 173; Conn v. State, 125 Ind. 514; Dolle v. Crumme, 41 Neb. 655; Kaufman v. Cooper, 46 Neb. 644; Steffers v. Lemke, 40 Minn. 27; Amorett v. Montague, 75 Mo. 43. 5. If the contract between the city and Schroeder was valid, the provision for the benefit of laborers and materialmen was void for the want of consideration. Amonett v. Montague, 75 Mo. 43; Ellis v. Harrison, 104 Mo. 270; Dunning v. Leavitt, 85 N.Y. 30; Trimble v. Strother, 25 Ohio St. 378; Brandon v. Hughes, 22 La. Ann. 360; Loeb v. Willis, 100 N.Y. 231; Wheat v. Rice, 97 N.Y. 296; Crowe v. Lewin, 95 N.Y. 423; Bank v. Bowman, 9 La. Ann. 195; Lapente v. Delaporte, 27 La. Ann. 252; Davis v. Calloway, 30 Ind. 112.

Porterfield & Conrad for respondent Halliwell Cement Company.

(1) The court has jurisdiction of this cause. Lee v. Jones, 181 Mo. 297. (2) The...