Karr and Conn v. Cade School Co-Op. Drainage Dist.

Decision Date13 August 1927
Docket NumberNo. 4136.,4136.
PartiesKARR AND CONN v. CADE SCHOOL CO-OPERATIVE DRAINAGE DISTRICT.
CourtMissouri Court of Appeals

Appeal from Circuit Court, Mississippi County; Frank Kelley, Judge.

Action by Karr and Conn, copartners, against the Cade School Co-operative Drainage District. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

J. M. Haw, of Charleston, for appellants.

Boone & McDowell, of Charleston, for respondents.

BAILEY, J.

This is a suit on a contract for the construction of a drainage ditch. The title to the case is misleading in that plaintiffs are the individuals constituting a co-partnership, and defendants adjoining landowners who undertook to avoid the cost incident to the forming of a statutory drainage district by voluntarily associating together under the name of the "Cade School Co-operative Drainage District." The title to the cause in the circuit court is in proper form, but this court has followed the title appearing on the printed briefs and abstract of the record.

The petition sets out in full the agreement of the landowners, which, after stating the purpose of the organization and the land to be included in the so-called drainage district, continues as follows:

"Second. That for and in consideration of the benefits which they will receive by reason of the construction of said ditch, the undersigned parties to this agreement each and severally bind themselves, their heirs, and assigns, to pay their proportional part of the same, which shall be allotted or assessed against them in the manner hereinafter specified.

"Third. That the undersigned parties to this agreement do hereby appoint and constitute E. J. Deal, Jr., as their agent and attorney in fact with full power to act for them in all matters affecting this cause and covered by this agreement, until all the purposes of this agreement have been fully accomplished, and all such acts of their agent and attorney in fact shall be fully binding upon each and every party to this agreement and upon his, her, or their heirs or assigns.

"Fourth. That said agent is hereby instructed to retain and employ L. T. Berthe, of the Berthe Engineering Company, engineer for said Maple Slough joint drainage district, and instruct him to have the necessary surveys made, including the staking out of the location of the proposed ditch, taking of the levels, preparation of the estimates, specifications, and contracts governing the construction of same, together with an itemized estimate of cost, and file a report with said agent, which shall be presented at a meeting of the parties hereto, called for that purpose."

Clause 5 provides that, after acceptance of the report of the engineer, two owners of land not within the territory assessed shall he selected, who shall, with L. T. Berthe, the engineer, constitute a commission to view the lands "owned by the undersigned" and apportion the costs against each parcel of land listed "In proportion to the benefits received," which apportionment shall be final and binding on each party to the agreement; and "each party shall pay into the hands of said agent such sums as are thus assessed or allotted against the lands owned by him to be used by said agent in paying the cost of the work including the contract price, pay of engineer, and commissioners and any other costs incident thereto, at the time and in the manner hereinafter set out."

Clause 6 provides that within 30 days after the filing of the report of the commissioners, the agent shall let the contract for the construction of the proposed ditch.

Clause 7 provides that said agent shall, from time to time, levy assessments against the parties in payment of the engineer's estimates. "Such assessments to be levied pro rata against all the parties in proportion to the allotments of cost as returned by the commissioners."

Clause 8 is as follows:

"That all such assessments thus levied by the said agent against the parties hereto shall be by them paid into his hands within five days after notice of such levy is received, and in the event of the nonpayment of any party hereto of any such assessment, the said agent shall have the right and power to borrow the amount of such unpaid assessment, and the interest on same from the date of this levy at the rate of 8 per cent. per annum shall accrue on said nonpaid assessment until paid. Upon any such assessment not paid within 90 days after the levy shall have been made, the said agent shall enter suit on behalf of the other parties to this agreement and for their protection, and shall be entitled to recover the total amount of such unpaid assessment, together with all accrued interest and a reasonable attorney's fee for collection, to all of which each and every party signing this agreement specifically agrees."

Clause 9 describes the limits of the district.

Clause 10 provides that upon completion of the ditch said agent shall present a final report at a meeting of the parties called by him for that purpose, and that when the work is completed, all expenses paid, "and all assessments levied against the parties have been collected, then all the purposes of this agreement shall have been consummated."

Clause 11 relates to the granting of right of way for the ditch.

Clause 12 provides that the contract shall become effective when the same has been signed by the owners of 75 per cent. of the acreage included in the district. The petition further alleges that all of the defendants, owning more than 75 per cent. of the acreage, signed the agreement putting into force the contract; that E. J. Deal, Jr., was the duly appointed agent of defendants in making a contract for the construction of said ditch; and that on the 2d day of June, 1920, said defendants, through their agent, entered into a contract with plaintiffs for the construction of said drainage district. This contract is also set out in full in plaintiffs' petition. It states the contract is entered into between plaintiffs (designating them) and E. J. Deal, Jr., for and in behalf of the Cade school co-operative drainage district ; that the plaintiffs agree to excavate the ditch (according to the terminus ad quem therein specified) under the direction of L. T. Berne, engineer; said work to be governed by the specifications for "the excavation of ditches of drainage district No. 32 of Mississippi county, which are made a part of the contract; that in consideration of the performance of the work by parties of the first part (plaintiffs herein), the—

"said party of the second part hereby promises and agrees to pay to the said party of the first part the sum of 14½ cents per cubic yard of excavation as specified, time and conditions of payment to be as follows:

"On or before the 10th day of each month payment will be made in a sum equivalent to 75 per cent. of the contract price for all work completed during the preceding month as estimated by the signed estimates of the engineer, who shall inspect the work for estimate at least once each month. The remaining 25 per cent. of the contract price shall be retained as a guaranty for the faithful performance of the contract until the final completion of all the work covered by this contract, and upon the filing of the signed report of the engineer stating that the provisions of this contract have been fully, complied with, or within ten days thereafter, said retained percentage shall be paid in full to the said party of the first part."

The petition further alleges a supplementary clause was entered into allowing for increase or decrease in price according to change in price of coal at East Prairie; that defendants approved the contract made by their agent, E. J. Deal, Jr.; that plaintiffs had no knowledge of any limitation on the liability of defendants, if any; and that they have fully complied with all the terms of the contract and "have completed the work and the same has been accepted by defendants and approved by their engineer;" that defendants have failed to pay all the contract price, and there remains unpaid the sum of $1,209, with interest, for which sum judgment is prayed.

Defendants' answer consists of a general denial except as to the "co-operative agreement," and then sets up as a defense that each defendant was liable for no more than the amount assessed against his individual land, which amount, it is alleged, each defendant has fully paid and discharged. On trial to the court judgment was for plaintiffs in the sum of $1,413.40, from which judgment defendants have appealed.

We have set out plaintiffs' pleading rather completely for the reason that error ,is assigned in overruling defendants' ore tenus demurrer to the petition. Under such circumstances the petition is entitled to a most liberal construction. The rule is that:

"If a matter material to plaintiffs' cause of action be not expressly averred in the petition, but the same be necessarily implied from what is expressly stated therein, the defect is cured by verdict." Lycett v. Wolff, 45 Mo. App. loc. cit. 493; Hurst v. City of Ash Grove, 96 Mo. 168, 9 S. W. 631.

In State ex inf. Major v. Arkansas Lumber Co., 260 Mo. 212 loc. cit. 283, 169 S. W. 145, 167, it is said:

"Such demurrer that is a demurrer ore tenus, in law has no more effect in reaching a bad petition than has a motion in arrest, which to an extent is covered fully by our statute of jeofails. Such demurrer will not reach mere uncertainty or indefiniteness of averment, or the defect of pleading legal conclusions."

With the foregoing rules in mind we shall first consider the objections raised to the petition. It is urged the petition is fatally defective because it fails to set out the grade and dimensions of the ditch to be excavated, the total amount of contract price, the amount paid before suit, facts from which could be determined amount earned by plaintiffs, amounts paid, and balance due; that it pleads a contract...

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