Kirkwood v. Meramec Highlands Company

• Decision Date: 12 February 1901
• Citation: 60 S.W. 1072,160 Mo. 111
• Parties: KIRKWOOD, Appellant, v. MERAMEC HIGHLANDS COMPANY et al
• Court: Missouri Supreme Court

60 S.W. 1072

160 Mo. 111

KIRKWOOD, Appellant, v. MERAMEC HIGHLANDS COMPANY et al

Supreme Court of Missouri, Second Division

February 12, 1901

Appeal from St. Louis City Circuit Court. -- Hon. D. D. Fisher Judge.

Transferred to St. Louis Court of Appeals.

O. J. & R. Lee Mudd for appellant.

Noble & Shields for respondents.

OPINION

BURGESS, J.

On the twenty-fourth day of September, 1895, the town of Kirkwood by ordinance number 195, granted to defendant Meramec Highlands Company, its successors and assigns, the exclusive right and privilege to erect, maintain, and operate waterworks within its corporate limits for the period of thirty years for supplying said town and the inhabitants thereof with water and for that purpose to use the streets, alleys, sidewalks, and public grounds of said town. Section 18 of said ordinance provided that the company should within thirty days after the execution of the contract execute a bond to plaintiff in the sum of $ 10,000, conditioned for the faithful performance on its part of its duties and obligations under the ordinance, and to fully indemnify the town and persons damaged by reason of the failure to comply with said ordinance, with a right to the board to require additional bond within thirty days if the sureties become insolvent, and if the company failed to give the additional bond to withhold payment for fire hydrants until $ 10,000 should be held as a proper security and for the same purposes mentioned in the bond, such withholding to be stopped at any time the company would give additional bond.

Afterwards the board passed an ordinance, number 207, extending the time for the beginning and completion of the work and requiring acceptance by the Meramec Highlands Company, which was accepted by it. Other ordinances were passed extending the time for the beginning and completion of the work which were accepted by the company. Among them was an ordinance numbed 210, which was amendatory of ordinance number 195, and provided that before the company should file with the town clerk an acceptance of the ordinance it should execute a bond in the sum of $ 1,000, conditioned that the company would file a bond for $ 10,000 required by section 18 of this ordinance, and would, within the time mentioned in ordinance numbered 195, as amended, begin and complete the construction of said waterworks. Said $ 1,000 bond was given by the company and approved by the trustees.

November 24, 1896, the town passed ordinance number 220, amendatory of ordinance number 195, extending the time for beginning the construction of the waterworks to May 24, 1897, and for finishing the same "in complete working order seven months after said date," etc., etc. Also amending section 18 of ordinance number 195, requiring the company "before commencing the construction of said waterworks" instead of "within thirty days after the filing by the said company of its acceptance of this ordinance" to give a $ 10,000 bond, conditioned as set forth in section 18 of ordinance number 195. This ordinance, number 220, required the company to accept the same, and section 4 thereof provided, "before any such acceptance of this ordinance shall be filed or accepted by the clerk of the town board for filing the said company shall first file with the town clerk a bond" in the sum of $ 1,500, "such sum not to be considered as a penalty but as agreed and liquidated damages for the breach of the conditions of such bond," etc., conditioned, "that the said company shall, within the time mentioned in section 18 of ordinance number 195, as amended by this ordinance, file with the town clerk the bond in the penal sum of $ 10,000 specified and called for by section 18, and conditioned further, that the said company shall, within the time mentioned and provided in section 4 of said ordinance number 195 as amended by this ordinance, begin and complete the construction of said waterworks, subject to the conditions mentioned and set forth in section 4."

The company accepted ordinance number 220, and executed its bond, dated December 4, 1896, for $ 1,500, reciting the ordinances of the board then in force and conditioned as follows: "Now, therefore, if the said Meramec Highlands Company shall on or before May 24, 1897, execute and file with the clerk of the town board of said town the bond in the penal sum of $ 10,000, as provided for and with the condition set forth in section 18 of said ordinance number 220, passed November 24, 1896, and shall begin and complete the construction of said waterworks pursuant to the ordinances of said town providing therefor, within the time mentioned and provided in section 4 of ordinance number 195, as the same is enacted and set forth in section 2 of said ordinance number 220, as passed November 24, 1896, subject to the conditions mentioned and set forth in said section 4, then this bond is to be void; otherwise to remain in full force and effect. And it is further agreed by the parties hereto, that in case of a breach of the conditions of this bond the said sum of $ 1,500, above mentioned, shall be held and taken as the agreed and liquidated damages to be forthwith due and owing to the said town of Kirkwood without further inquiry or admeasurement thereof, and not as a penal sum for the payment of such damages as may be ascertained by inquiry independent of these articles."

This action is upon this last bond.

The breaches of the bond, alleged, are, the failure of defendants to execute and file the ten thousand dollar bond provided for, and the failure thereafter and within the time provided in the bond to begin and complete the construction of said waterworks.

The defendants in their answer admit the execution of the bond sued on, but allege further that it was without consideration, and that it was not in compliance with the terms of the ordinances of the ...