Kelley v. Morton
| Decision Date | 04 May 1914 |
| Citation | 166 S.W. 840,179 Mo.App. 296 |
| Parties | D. B. KELLEY, Respondent, v. JOSEPH MORTON and PEARL MORTON, Appellants |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. Wm. D. Rusk, Judge.
AFFIRMED.
Judgment affirmed.
Joseph Morton and H. K. White for appellants.
Frank B. Fulkerson and Frederick D. Fulkerson for respondent.
Plaintiff brought this suit to enforce the lien of four special tax bills for grading a street on which defendant's lots fronted. Said tax bill were issued by the city of St. Joseph, February 28, 1911. The objection made to the validity of the tax bills is to the estimate made by the city engineer prior to the passage of the ordinance authorizing the work. In all other respects the steps taken by which the work was authorized and the tax bills issued are deemed to be regular. Nor is any contention made that the plaintiff did not do the work in the manner and within the time prescribed by the ordinance and contract. No objection was made at any time to the manner of the grading, nor is there any showing of fraud connected therewith. After the contractor had spent his money and performed the work in accordance with the ordinance and contract, defendant refused to pay said tax bills. After they had drawn interest for some time, and shortly before suit was brought, defendant tendered $ 70 in full payment of the bills which was not quite one-half the face of the bills not taking into consideration the interest due thereon. This tender was refused and suit was brought. The case was tried by the court, a jury being waived. Judgment was rendered for the full amount of the tax bills enforcing same upon the property described therein. Defendant appealed.
The objection concerning the Engineer's estimate is not that no estimate at all was filed but that the one that was filed was inaccurate; that when the Board of Public Works of St Joseph approved the proposed ordinance to authorize the work and transmitted it to the Common Council of said city the estimate accompanying it, prepared by the then city engineer and filed in the office of said board, stated that the work to be done under said ordinance would amount to 16,070 yards costing $ 4,018; that the work actually done under the contract amounted to 29,827.45 yards at 33 1/2 cents per cubic yard aggregating $ 9992.20. It is thus seen that the estimated cost was only 42 per cent of the actual cost. The question is, in the absence of any fraud violation of the contract or variation in the manner of the performance of the contract, does the fact that the estimate made by the city engineer varies so widely from the actual cost, render the tax bills void? If not, does it, or can it, have the effect of reducing the amount recoverable by plaintiff down to the corresponding proportion of the actual cost?
The only reference made by the city charter to any "estimate" appears in section 8838, R. S. 1909. That section provides that all petitions for grading shall be addressed and presented to the Board of Public Works which shall speedily hear and determine same. The section further provides that the board upon its own motion may, and, if a petition signed by a majority of the front feet is presented "shall prepare an ordinance for the improvements contemplated, and submit such proposed ordinance, together with such petition or a copy thereof for such improvements, if there be a petition, together with all objections thereto or copies thereof that may have been filed with the board, with such recommendations as it may desire to make to the common council, with...
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