Layne v. City of Windsor

• Court: Missouri Supreme Court
• Writing for the Court: WILLIAM E. BUDER
• Citation: Layne v. City of Windsor, 442 S.W.2d 497 (Mo. 1969)
• Decision Date: 09 June 1969
• Docket Number: No. 1,No. 53763,53763,1
• Parties: Mark B. LAYNE, Appellant, v. CITY OF WINDSOR, Missouri, a Municipal Corporation, Respondent

Page 497

442 S.W.2d 497

Mark B. LAYNE, Appellant, v. CITY OF WINDSOR, Missouri, a Municipal Corporation, Respondent.

No. 53763.

Supreme Court of Missouri, Division No. 1.

June 9, 1969.

Motion for Rehearing or to Transfer to Court En Banc Denied

July 14, 1969.

Ike Skelton, Jr., Lexington, Gayles R. Pine, Warrensburg, for appellant; Bradley, Skelton & Schelp, Lexington, of counsel.

James B. Wilson, Windsor, for respondent.

WILLIAM E. BUDER, Special Judge.

Plaintiff appeals from a judgment for defendant where trial was to the Court without a jury. Plaintiff sought to recover damages for the amount of $20,000.00 on breach of contract from the City of Windsor, a city of the fourth class, located in Henry County, Missouri. Article V, Section 3, Constitution of Missouri, V.A.M.S., and the amount in dispute vest jurisdiction in this Court.

Plaintiff, a registered professional engineer, was employed by defendant under a contract, which was incorporated and set forth in a duly enacted ordinance, to prepare and submit plans and estimates for a sewer extension project to be constructed in the city and to direct and supervise the construction thereof under a master plan. Upon completion and submission of preliminary plans and estimates, construction on the sewer extension project was to proceed after a proposal for a bond issue therefor was adopted by the voters of the city. The ordinance was enacted on November 6, 1961, and the bond issue proposal was first submitted to the voters on May 18, 1964, but it was not adopted. Plaintiff then performed some adjustments and revisions to effect a reduction in cost of construction on the project and such proposal, which was submitted to the voters on October 20, 1964, also failed. Plaintiff had received $1,500.00 from defendant for his services. During the month of January, 1965, the board of aldermen adopted a resolution wherein plaintiff's entire program was abandoned and notification thereof was had upon plaintiff. Sometime later another registered professional engineer was employed by defendant and a subsequent bond issue was approved by voters. The project then progressed under direction of the second engineer and under his plan and estimates.

The evidence shows that plaintiff and his staff prepared and completed plans, specifications and surveys for the preliminary report and secured estimates of cost thereon and the same all were embraced within the initial bond issue proposal. After the initial bond issue failed to pass, plaintiff met and conferred with members of the board of aldermen and some adjustments and revisions were achieved in plaintiff's plan and estimates. Essentially these provided for an alternate alignment system to put a lagoon closer to the city and to put another lagoon in the northwest part of the city. City officials also requested plaintiff to attend a hearing before the Water Pollution Board at Columbia, Missouri, and this board found his preliminary plan and estimates to be economical and feasible. Plaintiff and his staff performed numerous and varied other services with respect to the project which extended over a three year period and he now contends he is entitled to payment under a schedule issued by the Society of Professional Engineers.

Pertinent portions of the ordinance relating to the contract of employment appear, in part, as follows:

'Section 1. * * * (D) After the presentation of the preliminary report the Consulting Engineer will attend a mass meeting to answer questions and present the Preliminary Master Plan estimate and report to the Citizens of the Community. The Board of Aldermen then shall submit bond issues for approval to the legal voters of Windsor, Missouri, for financing sewer system extension.'

'Section 2. (A) That said Mark B Layne be also employed by the City of Windsor, Missouri, in the event such bond issues be approved by the legal voters of said City, to make and prepare complete plans, profiles and specifications and construction estimates for the construction of said sewer system extension and to do all other necessary engineering work in connection with the construction thereof. including the supervision of the construction of said improvements. This section to become effective only after the approval of the bonds by the voters.'

'(B) If after approval by the legal voters of Bond Issues for the financing of the project or parts thereof, sections of engineering services are delayed from causes beyond the control of the engineer such as Federal or State restrictions due to war or other causes, this agreement shall be a continuing contract, for engineering services on the project.'

'(C) The Engineer shall make revisions of the preliminary plans, report and estimate from time to time pending subsequent bond issues, or changes in Federal or State Regulations without additional expense to the City.' * * *

Plaintiff's first assignment of error is directed to the holding by the trial court that the contract terminated by virtue of its own terms. Plaintiff takes the position that under the terms of the contract defendant was obligated to submit two additional bond issue proposals to voters after the first or initial submission had been rejected. This is based primarily upon the words 'bond issues' appearing in Section 1(D) and 'subsequent bond issues' appearing on Section 2(C) of the contract. The words 'bond issues' mean, of course, more than one bond issue and actually more than one was submitted to voters. The words 'subsequent bond issues,' being contained in Section 2, apply only in the event a bond issue was approved. The entire contract including these words must be construed, however, under controlling authorities relating to contracts of this character. The case of Kansas City v. City of Raytown, Mo., 421 S.W.2d 504, does concern a situation where a city of the fourth class sought cancellation of a contract for sewer construction after two unsuccessful bond elections were held. Although the said city did not prevail in that case, the terms of the cooperative agreement involved therein are entirely different than those presented in this case. The cases thus are clearly and readily distinguishable. Here the preliminary stages, as provided in Section 1, had progressed and were completed. The voters rejected bond issue proposals, which...