Likes v. City of Rolla
| Decision Date | 02 June 1914 |
| Citation | 167 S.W. 645,184 Mo.App. 296 |
| Parties | J. C. LIKES, Respondent, v. CITY OF ROLLA, Appellant |
| Court | Missouri Court of Appeals |
Appeal from Maries County Circuit Court.--Hon. J. G. Slate, Judge.
REVERSED.
Judgment reversed.
Syllabus by the Court.
Holmes & Holmes, Bland & Murphy, for appellant.
(1) Only authority for respondent to do this paving in question was the verbal request of the mayor and street committee. This was beyond their authority and did not bind the appellant. Clay v. Mexico, 92 Mo.App. 619; Thrush v. Cameron, 21 Mo.App. 394; O'Dwyer v. Monnett, 123 Mo.App. 184; State ex rel. v Fort, 210 Mo. 556; Murphy v. City of Albina, 29 P. 354. (2) General ordinance is not sufficient to authorize street improvements. City to use v. Eddy, 123 Mo. 559. (3) There was no contract in writing for this paving in question; and unless it is in writing it is void, and being void cannot be ratified. Sec. 7, ordinance 37, page 41, abstract; Secs. 2778-2779, R. S. 1909; Cotter v. Kansas City, 251 Mo. 224; Cook & Son v. Cameron, 144 Mo.App. 137; Anderson v. Ripley County, 181 Mo. 46; Crutchfield v. Warrensburg, 30 Mo.App. supra; Compressed Air Co. v. Fulton, 166 Mo.App. 29; State ex rel. v. Dierkes, 214 Mo. 587; Savage v. Springfield, 83 Mo.App. 323; Perkins v. School District, 99 Mo.App. 483. (4) The petition states no cause of action, therefore no valid judgment can be rendered thereon. This objection is available at any stage of the proceedings. Rundelmann v. Boiler Works, ___ Mo. ___, 161 S.W. 609; Jones v. Lumber Co., ___ Mo. ___, 157 S.W. 864.
J. J. Crites, Barbour & McDavid for respondent.
(1) The city of Rolla had the right under its charter to make the complained of improvements at the expense of the city for the general good, and for the safety and convenience of the people. The improvement of the streets is clearly within the scope of its powers. Secs. 9371, 9400, 9401, 9412, R. S. 1909; 28 Cyc. 634. (2) After the work was completed the council accepted it by resolution. This resolution was passed by the affirmative votes of five members of the council--a majority--was approved by the mayor and attested by the city clerk. This resolution, having been passed with the same formality as an ordinance is passed, took the place of an ordinance. McEvilly v. Knott, 49 Mo.App. 616; Wheeler v. Poplar Bluff, 149 Mo. 45; Poplar Bluff v. Hoag, 62 Mo.App. 675; Mulligan v. Lexington, 126 Mo.App. 719. (3) The work was within the scope of the city's inherent and charter powers, and the council had the right by ordinance to ratify and pay for it. Dillon on Municipal corporations (5 Ed.), secs. 297 and 299; Steffen v. Fox, 135 Mo. 44; Imler v. Springfield, 30 Mo.App. 679; Heman v. St. Louis, 213 Mo. 546; Moore v. City of Albany, 98 N.Y. 396; Devers v. Howard, 88 Mo.App. 261; Water Co. v. Aurora, 129 Mo. 583; State ex rel. v. Milling Co., 156 Mo. 634; Whitworth v. Webb City, 204 Mo. 601; City to use v. Armstrong, 56 Mo. 298; Hill v. Indianapolis, 92 F. 467; St. Louis v. Ruecking, 232 Mo. 342. (4) The city is estopped to deny its liability under the facts presented by this record. The same rule that would apply to individuals will be applied to the city in this case. Depot Co. v. St. Louis, 76 Mo. 396; Stealey v. Kansas City, 179 Mo. 407; Edwards v. Kirkwood, 147 Mo.App. 616; Wilson v. Drainage District, 158 S.W. 940; Simpson v. Stoddard County, 173 Mo. 463.
The plaintiff, a contractor, sues the city of Rolla for furnishing the materials and constructing 834,837 square yards of first-class brick pavement with concrete base upon the streets of such city. It is alleged that this work was done at the special instance and request of the defendant city, at the places designated by the defendant, during August and September, 1910; that on October 3, 1910, by resolution of its board of aldermen, the defendant accepted such work and materials and agreed to pay plaintiff $ 2.34 per square yard, making a total of $ 1953.53; and that on October 12, 1910, defendant agreed in writing to pay said sum in three equal annual installments. An itemized statement is filed, giving these items:
It will be noted that the petition does not allege the furnishing of materials and the doing of this work under a written contract, by ordinance or otherwise, previously made by the parties upon a consideration wholly to be performed or executed subsequent to the making of the contract, as required by section 2778, Revised Statutes 1909. The allegation of doing the work at the special instance and request and at the places designated by defendant and the subsequent acceptance and agreement to pay for same in writing plainly implies the contrary and such the evidence shows to be the fact. The court found for the plaintiff and entered judgment for the amount sued for.
The plaintiff put in evidence an ordinance of said city, approved June 2, 1910, accepting the bid of plaintiff for paving Pine street in said city from the center of Sixth street to the center of Tenth street, and awarding him the contract. This ordinance provides: "All of said improvements to be paid for in special tax bills issued against the abutting property liable to pay therefor according to the front foot thereof." The written contract for doing such work, dated June 3, 1910, is also in evidence and is in the usual form of such contracts for doing such work under the provisions of sections 9403, 9405 and 9406, Revised Statutes 1909. It provides that such work, when performed according to the contract and plans and specifications made a part thereof and accepted by the city, shall be paid for by the city by special tax bills issued against the property liable for the costs of such work, and further that: "It is also expressly agreed that the said party of the second part shall not be liable to pay directly or indirectly for said work or any part thereof, except in special tax bills as hereinafter provided, and the party of the first shall and does assume all risks as to the legality and illegality, validity or invalidity of said special tax bills, and take the same without recourse against the city of Rolla, Missouri."
It is conceded that this is the only contract made in writing at any time and the only one authorized by any ordinance prior to the time of doing this work. As to the claimed ratification by ordinance or resolution after the work was done, we shall speak later.
Two of the items sued for here, for the paving in front of the government lots, $ 766.87, and for paving the east half of the intersection of Eighth street and Pine street, $ 234.50, are embraced in the paving of Pine street from curb to curb from the center of Sixth street to the center of Tenth street provided for by the ordinance and contract above mentioned. To complete and comply with his contract plaintiff must do the paving which is sued for in these two items, and, under the contract, the city is not liable therefor, except to issue special tax bills covering the same. It should be said in explanation of these items that the United States acquired title to certain lots fronting on the portion of Pine street to be paved for post-office purposes and it is assumed by all parties that no valid tax bill could be issued against this property. As to the second item, just mentioned, the evidence shows that Eighth street to the center of Pine street had already been paved but on a different grade and, perhaps, with inferior or different materials, and same was torn up and repaved, but for some cause it was not thought best or fair to include this work in the special tax bills. [See section 9405, R. S. 1909.] The other items sued for are clearly outside the contract in question and this extra paving was brought about by extending the paving of Pine street further south than the center of Sixth street, its terminus under the contract, to the south side of Sixth street, and by also extending the paving at street intersections beyond the extended curb line to the extended property line, thereby making paved crosswalks in line with the sidewalks.
The basis of plaintiff's claim for recovery against the city in addition to its ratification after the work was done, is a parol contract with the mayor and members of the city council, constituting the street committee, authorizing the doing of this work at the expense of the city. The evidence shows that, as to the paving fronting on the government property, the plaintiff declined to sign the contract above mentioned until these city authorities assured him and agreed with him, verbally of course, that the city would pay for this part of the paving. It is also shown that it was not contemplated that the old paving at the intersection of Eighth street and Pine street should be torn up and replaced, but, during the progress of the work, the different grades and, perhaps, other reasons necessitated or made this highly desirable and these same city officials assured the plaintiff and agreed with him that the city would pay for this work. Likewise, during the progress of paving Pine street, under the contract mentioned, a verbal agreement was made by these city officials to make the extensions mentioned and that the city would pay for the same. In each instance the kind and price of paving was to be the...
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