Kiley v. Forsee
| Decision Date | 31 August 1874 |
| Citation | 57 Mo. 390 |
| Parties | FLORENCE KILEY, Respondent, v. E. B. FORSEE and Z.FORSEE, Appellants. |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court.
Ensworth and Hill & Carter, for Appellants.
W. H. Sherman, for Respondent.WAGNER, Judge, delivered the opinion of the court.
The plaintiff as contractor with the city engineer of St. Joseph, brought this action on certain certified tax bills, to recover the price for macadamizing, guttering, etc., done on eighth street, adjoining defendant's property. The answer set up want of authority in the engineer to make the contract, and that the work was done negligently and not in compliance with its terms. The ordinances from which the authorization was derived were submitted in evidence, and testimony was also adduced on each side as to the character and manner of doing the work. Upon a full hearing of the whole case, the judgment was for the plaintiff.
There was a general ordinance regularly passed and in existence, defining the dimensions, materials and manner of macadamizing and guttering when any work of that description should be ordered to be done; and there was another ordinance which was duly approved May 13, 1865, which provided, that whenever the City Council should order the macadamizing, guttering, crossings, sidewalks or other public works in the City of St. Joseph, when the performance of the same by contract would be deemed adantageous to the city by the city authorities, it was made the duty of the city engineer to cause an advertisement to be inserted in the official paper of the city, that he would receive sealed proposals at his office for the performance of the work ordered. Whilst these ordinances were in force, the City Council passed the following ordinance; “The city engineer is hereby required to advertise for sealed proposals, for the macadamizing, guttering and curbing of Eighth Street from Olive Street north to the north line of Francis Street, in accordance with the provisions of the ordinances now in force in relation to macadamizing, curbing and guttering the streets and alleys of the City of St. Joseph.”
It was under the authority of this last ordinance that the city engineer proceeded to make the advertisement for sealed proposals, and the contract was awarded by him to the plaintiff upon the proposals which he received thereunder. The contract was executed by the engineer acting through his deputy.
As there was abundant evidence to support the verdict, this court has no concern in reference to its weight, or on which side we might suppose it preponderated. It will be necessary, therefore, only to consider the instructions, as they go to the merits of the whole case, and cover every material question of law that is raised.
For the plaintiff the court gave two instructions; the first of which, in substance, declared that the ordinances and contract read in evidence constituted in law a contract with the plaintiff and authorized him to do the macadamizing, guttering, etc. of Eighth Street from Olive Street to Francis Street; that the certified tax bills were prima facie evidence of the liability of the persons named therein, as owners; and that the plaintiff was entitled to recover, unless it was shown by the evidence that defendant's property was injured or its value diminished by reason of any failure to comply substantially with the requirements of the ordinances, and the terms of the contract in the performance of the work charged in the bills. The second instruction was, that if the finding was for the plaintiffs, it should be for the amount of the bills with interest thereon, unless the evidence showed that defendants were entitled to a reduction of the amount of the bills by reason of plaintiff's failure to perform the work in a good and workmanlike manner, or in substantially the manner required by ordinance; and, if the evidence showed that such reduction should be made, then the judgment should be for the plaintiff for the balance with interest.
Upon its own motion the court declared the law to be that the certified tax bills upon which the suit was brought, could not be issued and enforced until after the completion of all the work mentioned in the contract.
To the giving of all the above declarations the defendant excepted.
The defendant asked the court to give seven instructions. The court gave those numbered one, six and seven, and refused those numbered two, three, four and five. The first which was given declared the law to be, that to entitle the plaintiff to recover, he must show affirmatively that the mayor and City Council of the city of St. Joseph, ordered the work in controversy to be done.
The sixth instruction declared that unless the plaintiff completed the work in controversy substantially in manner...
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