Ketchum v. The City of Monett

• Decision Date: 09 March 1916
• Citation: 181 S.W. 1064,193 Mo.App. 529
• Parties: MARY KETCHUM, Respondent, v. THE CITY OF MONETT, Appellant
• Court: Missouri Court of Appeals

181 S.W. 1064

193 Mo.App. 529

MARY KETCHUM, Respondent, v. THE CITY OF MONETT, Appellant

Court of Appeals of Missouri, Springfield

March 9, 1916

Appeal from Barry County Circuit Court.--Hon. Carr McNatt, Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

H. A Gardner for respondent.

T. D Steele for appellant.

ROBERTSON P. J. Sturgis and Farrington, JJ., concur.

OPINION

ROBERTSON, P. J.

--Plaintiff alleges that the defendant is a city of the third class; that she was the owner of two adjoining lots fronting east on Fifth street of said city; that they were well improved and had two residences thereon, shrubbery and lawns and a brick sidewalk in front thereof all upon the natural surface; that the defendant by two separate resolutions passed and approved by the Council of said city September 9, 1913, declared it necessary to improve said Fifth street by constructing in front of plaintiff's property concrete curb, gutter and sidewalk; that bids were advertised for and ordinances passed and approved October 16, 1913, accepting bids for the work and authorizing contracts for the curb and gutter and sidewalk at the established grade and under the direction and supervision of defendant's engineer; that contracts were entered into with G. W. Baldridge for the building of the sidewalk and with L. A. Mason for the curb and gutter on the established grade; that said contracts provided for the payment for said work to be made by special tax bills issued by defendant; that the contractors carried out the contracts by making the improvements as therein provided and tax bills were ordered issued to the contractor; that the grade furnished to the contractors by defendant was about two and one-half feet above the natural surface of said lots and that said improvements were made without the city taking any steps to ascertain and assess plaintiff's damages. The defendant answered admitting its incorporation and denying each and every other allegation in plaintiff's petition. A jury trial resulted in a verdict for the plaintiff upon which judgment was entered and defendant has appealed.

At the trial the defendant admitted that in 1907 the grade in front of plaintiff's property was established and the testimony discloses that this new grade was between thirteen inches or two feet above the natural surface where the improvements complained of were made. The resolution concerning the sidewalk referred to in the petition was offered in evidence and it is admitted that the resolution concerning the curb and gutter is the same except that it calls for curb and gutter instead of for sidewalk. The resolution concerning sidewalk recites: "That the Council deems and declares it necessary to improve both sides of Fifth street of said city . . . by excavating, filling, preparing foundations therefor, and constructing thereon first class concrete sidewalk on both sides of said Fifth street, . . . where such improvements are not already in or permits granted therefor." The ordinance accepting the bid and authorizing the contract provides for the excavating, filling, etc. "except where sidewalks are already in or permits granted therefor." The contract entered into follows the language of the ordinance.

The contractors placed the curb and gutter in front of plaintiff's property seven or eight feet from the sidewalk, also removed the brick, made such fills as were necessary to bring the curb and gutter and sidewalk to the established grade and replaced the brick walk upon such grade. On April 24, 1914, the engineer of the defendant city reported to the Council that the work had been completed according to the contract; that he had computed and apportioned the cost, giving the square feet of new concrete walk with its total cost at twelve cents per square foot, the contract price, and also the number of square feet of "relay brick walk" with the total cost thereof at six per cent per square foot. He then apportioned the cost of the various lots and charges plaintiff's lot with its proportional part of "relay brick." This report was filed, adopted and approved by the council, but it is doubtful if there is anything in the record tending to show that any ordinance was passed by the city adopting this report and ordering tax bills. No such ordinance was offered in evidence. The city clerk was a witness for the plaintiff and he testified that when the council accepted the report of the engineer the city attorney was instructed to draft an ordinance authorizing the issuance of tax bills. The witness was then asked if he had the ordinance drawn by the city attorney as directed by the council and he replied that he did not think he had it with him. He then testified that the order made by the council was carried out and the ordinance was passed. The plaintiff's attorney then stated that he had subpoenaed the witness to bring all the records and admitted that there were no tax bills issued against the property but that they were ordered and the plaintiff had to pay them. The court then remarked that it could be shown that plaintiff had "paid it off." The plaintiff's attorney replied that she had testified that she paid. As a matter of fact the plaintiff had testified that she paid for the curb and gutter but that she had not paid for the sidewalk, so we conclude from this record that the ordinance to which reference was being made was the ordinance concerning the curb and gutter.

At the close of the testimony the defendant requested the court to direct a verdict in its behalf which was refused and thereupon, at the request of the plaintiff, instructed the jury that if the defendant by its contractor constructed in front of plaintiff's property combined curb and gutter and sidewalk under the direction and supervision of...