Megarry Bros. v. City of St. Thomas, 7444
| Decision Date | 02 September 1954 |
| Docket Number | No. 7444,7444 |
| Citation | 66 N.W.2d 704 |
| Parties | MEGARRY BROS. v. CITY OF ST. THOMAS. |
| Court | North Dakota Supreme Court |
Syllabus by the Court.
1. Ordinarily questions not raised at the trial will not be considered on appeal, but where a pertinent statute has been overlooked resulting in plain error that is of
public concern, this court will consider the error though it be not brought to our attention by either of the parties.
2. Municipal corporations are agencies of the state and have only the powers expressly conferred upon them by the legislature or such as may be necessarily implied from the powers expressly granted.
3. Among the legislative grants of power to cities is the power to defray the expenses of certain improvements by the special assessment method as prescribed by Chapter 40-22, NDRC 1943 and amendments thereto.
4. Persons entering into contractual relations with municipal corporations or their officers are chargeable with notice of the extent of and limitations upon their powers.
5. Where a city and a contractor enter into a public improvement contract pursuant to the provisions of Chapter 40-22, NDRC 1943, pertinent existing statutes form a part of the contract to the same extent as if they were expressly incorporated therein.
6. Section 40-2236, NDRC 1943 prohibits a municipality from assuming or incurring a general liability upon contract, express or implied, for improvements made pursuant to the provisions of Chapter 40-22, NDRC 1943.
Day, Stokes, Vaaler & Gillig, Grand Forks, for plaintiff and appellant.
M. J. Clayburgh, Grafton, for defendant and respondent.
Because of the unusual situation presented by this appeal we deem it necessary to set out the pleadings at some length. The plaintiff alleges in the complaint
2.
'That the City of Saint Thomas is a Municipal Corporation organized and existing under and by virtue of the laws of the State of North Dakota.
3.
'That between the fifteenth day of June, 1948, and the first day of January, 1949, the Plaintiff furnished material and equipment and furnished machinery and labor for the construction of paving in the City of Saint Thomas of the agreed value as follows:
Item Quantity Unit Unit Price Total Amount
-------------------------------------------------------------------
Excavation, street 4,915 C. Y. $0.75 $3,686.25
Excavation, Inter. 465 C. Y. 0.75 348.75
Gravel, pit run 5,462 C. Y. 2.15 11,743.30
Pump and Housing 1 Ea. 2,550.00
Catch basins 12 Ea. 130.00 1,560.00
Manhole 1 Ea. 175.00 175.00
18"" Perforated Pipe 200 l. f. 3.75 750.00
10"" Perforated Pipe 1,072 l. f. 2.80 3,001.60
8"" Perforated Pipe 1,800 l. f. 2.50 4,500.00
Rock Trenchfill 560 C. Y. 3.50 1,960.00
Gravel Trenchfill 590 C. Y. 2.15 1,268.50
Crushed Gravel Base 2,045 C. Y. 2.90 5,930.50
Bit, Surfacing, 1 1/2 "" 10,528 S. Y. 0.50 5,264.00
Bit, Surfacing, 2 1/2 "" 8,273 S. Y. 0.75 6,204.75
Prime Bit. 6,260 Gal. 0.14 876.40
Seal Bit. 4,320 Gal. 0.15 648.00
Sand for Seal 170 Ton 5.00 850.00
Force Account Work 1,071.65
'That said work and material was of the agreed value of Fifty Two Thousand Three Hundred Eighty Eight and 70/100 ($52,388.70) Dollars and was accepted by the Engineer for the City and certified to the City as of said value. That no part of said amount has been paid except the sum of Thirty Nine Thousand Seven Hundred Twenty Five and 75/100 ($39,725.75) Dollars leaving a balance due and owing of the sum of Twelve Thousand Six Hundred Sixty Two and 95/100 ($12,662.95) Dollars together with interest at the legal rates of the first day of January, 1949, to the date hereof.
4.
'That Plaintiff has made demand for said sum and that payment has been refused.
'Wherefore, Plaintiff prays for judgment against Defendant for the sum of Twelve Thousand Six Hundred Sixty Two and 95/100 ($12,662.95) Dollars together with Plaintiff's costs together with interest at the rate of 4% per annum from the first day of January, 1949, together with Plaintiff's costs and disbursements herein.'
For its answer the defendant
II
'Denies that the City of Saint Thomas has sufficient knowledge or information to form a belief as to the allegation contained in paragraph one of said complaint.
III
'The City of Saint Thomas affirmatively alleges that between the approximate dates of the 15th day of June, 1948, and the 1st day of January, 1949, the plaintiff furnished materials and equipment and furnished machinery and labor for the construction of paving in the City of Saint Thomas and for the said materials, equipment, machinery and labor, the plaintiff has been paid in full and that no part thereof is due and owing.
'As and For a Further Affirmative Defense and Counterclaim To the Complaint of the Plaintiff, Defendant Respectfully Alleges and Shows to the Court the following:
I.
'That the plaintiff negligently and in an unworkmanlike manner constructed the paving of main street between Hager Avenue and Cleland Avenue as to cause same to be unfit for general travel, requiring the City of Saint Thomas to reconstruct said paving to their damage of Two Thousand, Five Hundred and Fifteen ($2,515.00) Dollars.
II.
'That the approaches to main street were constructed in such an unworkmanlike manner through the negligence of the plaintiff and his employees that proper drainage cannot be had without considerable fill and labor thereby damaging the City of Saint Thomas in the amount of Four Thousand, Five Hundred ($4,500.00) Dollars.
III.
'That due to poor workmanship and the negligence of the plaintiff and his employees, the drainage pipe extending from Cleland Avenue to Moore Avenue on the west side of main street was so constructed and placed that it could not possibly carry water; that due to this act of negligence, it was necessary for the plaintiff and his employees to replace said drainage pipe at additional cost of labor and materials; that due to the necessity of removing said drainage pipes and replacing same, the structure of the highway within the city limits hereinbefore specified was so weakened that said portion of the road sunk causing a depression along the west side of the street; that to repair the sunken condition of the highway, it will be necessary for the City of Saint Thomas to expend moneys in excess of Three Thousand, Five Hundred ($3,500.00) Dollars all of which is to defendant's damage.
'Wherefore, The defendant prays that the plaintiff's action be dismissed with costs and disbursements and the defendant further prays for Judgment against the plaintiff for the sum of Ten Thousand, Five Hundred and Fifteen ($10,515.00) Dollars, together with interest, costs and disbursements herein.'
To the defendant's answer the plaintiff replied by a general denial.
The case was tried at length to a jury and at the close of all of the evidence both sides moved for a directed verdict. The court denied both motions and instructed the jury under the pleadings and the evidence, whereupon the jury returned the following verdict:
'We, the jury empanelled in the above entitled action, find for the defendant for the dismissal of the plaintiff's complaint and we find for the plaintiff for the dismissal of defendant's counter-claim.'
The plaintiff moved in the alternative for a judgment notwithstanding the verdict or for a new trial. This motion was denied on October 27, 1953, and on that date judgment was entered dismissing plaintiff's action. The plaintiff appeals from the judgment and from the order denying its alternative motion.
The plaintiff specifies errors at law in the admission of evidence and in the court's instructions to the jury. It also challenges the sufficiency of the evidence to support the verdict.
We now turn to the evidence, from which we extract these important facts: At a special meeting June 8, 1948, the City Council of the City of Saint Thomas passed this resolution:
'that this Council has found and determined, and hereby declares, that the owners of less than a majority of the property liable to be specially assessed for the improvement which is to be made in paving district No. 1 have filed protests against the making of said improvement, and the time for filing such protests has expired, said date being the 17th day of May, 1948 and the protests filed are insufficient, and therefore the City and its governing body are authorized and empowered to cause said improvement to be made and to contract and levy and collect assessments therefor.'
It appears that prior to this meeting of June 8, the city council had passed a resolution declaring it to be necessary and convenient and to the best interests of the city that a hard surface street be constructed within the limits of paving district number one. May 17 had been set as the date for making protests against the improvement. An engineer, Theodore Spriggs, had been employed and had prepared plans, specifications, and an estimate of the probable cost of the proposed improvement. Notice of the receipt of sealed bids based upon these plans and specifications had been published on April 15 and 22. The only bid received was that of the plaintiff. The city council at the special meeting of June 8 adopted the following resolution:
'Be it Resolved by the City Council of the City of Saint Thomas, North Dakota, that the bid submitted by McGerry Bros. in the amount of $39,725.75 for the construction of a paving project within the confines of Paving District...
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