Karr and Conn v. Cade School Co-Op. Drainage Dist.
Decision Date | 13 August 1927 |
Docket Number | No. 4136.,4136. |
Parties | KARR AND CONN v. CADE SCHOOL CO-OPERATIVE DRAINAGE DISTRICT. |
Court | Missouri 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.
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:
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:
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.
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:
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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