Merine v. Barber Asphalt Paving Company
| Decision Date | 06 May 1907 |
| Citation | 103 S.W. 508,125 Mo.App. 623 |
| Parties | MINNIE E. MERINE, Appellant, v. BARBER ASPHALT PAVING COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hons. Shannon C. Douglass and Henry L. McCune, Judges.
AFFIRMED.
Action of the court in granting a new trial affirmed.
John Muckle and Hayward & McLane for appellant.
(1) There was no existing reason, when the contract was made, why the work embraced by it should not be commenced immediately and the contract specified that the work should be commenced within ten days from the time the contract became binding and took effect, and made it an essential condition of the contract that the work should be commenced within said ten days. 7 Am. and Eng. Ency. of Law (2 Ed.), pp. 120, 121; Hilgert v. Paving Co., 107 Mo.App. 396; Neill v Gates, 152 Mo. 585; Childers v. Holmes, 95 Mo.App. 155; Asphalt Co. v. Ridge, 169 Mo. 376; Rose v. Trestrail, 62 Mo.App. 352; McQuiddy v Brannock, 70 Mo.App. 535; Whittemore v. Sills, 76 Mo.App. 251; Deposit Co. v. James, 77 Mo.App 616; Ayres v. Schmohl, 86 Mo.App. 355; Winfrey v. Linger, 89 Mo.App. 161; Orange Growers' Ass'n. v. Gorman, 161 Mo. 203; Trust Co. v. York, 81 Mo.App. 342; Davis v. Smith, 15 Mo. 467; Shouse v. Neiswanger, 18 Mo.App. 250; Hall v. School District, 24 Mo.App. 213; Brinkirhoff v. Elliott, 43 Mo.App. 185; Beatie v. Coal Co., 56 Mo.App. 221; Harrison v. Railroad, 74 Mo. 364; Schibel v. Merrill, 185 Mo. 534; Hund v. Rackliffe, 192 Mo. 312; Paving Co. v. Munn, 185 Mo. 571; Schoenberg v. Heyer, 91 Mo.App. 389. (2) The contract treated the time of beginning and the time of completion differently. This case does not, therefore, fall within the "reasonable time" rule referred to in Hilgert v. Paving Co., 107 Mo.App. 385, and in the cases cited on page 398 of that report.
Scarritt, Scarritt & Jones for respondent.
(1) It is not asserted or inferentially contended that the plaintiff was in any way damaged by defendant's omitting to tear up the street ten days before it did; nor is it asserted or contended that the work was not completed within the lawful time which the mayor and common council had fixed by ordinance for its completion. Hilgert v. Paving Co., 107 Mo.App. 400; Johnson v. Duer, 115 Mo. 378; Sheehan v. Owen, 82 Mo. 465. (2) Upon consideration of the entire public improvement proceeding, consisting of the ordinance, contract, specifications and guaranty bond, the time of commencement of the work will be held not to be of the essence of the defendant's undertaking. Allen v. Labsap, 188 Mo. 692; Heman v. Gillman, 171 Mo. 258; Construction Co. v. Loevy, 179 Mo. 455; Hund v. Rackliffe, 192 Mo. 323; Jenkins v. Stetler, 118 Ind. 275. (3) It is the established rule in this State that a substantial compliance with public improvement contracts is all that is required to impose an obligation on property owners benefited by those improvements to pay the contract price. This has been held to be the rule as to time of completion. Boulton v. Kolkmeyer, 97 Mo.App. 530; Cole v. Skrainka, 105 Mo. 303; St. Joseph v. Anthony, 30 Mo. 538; Sheehan v. Owen, 82 Mo. 458; Stephen v. Fox, 124 Mo. 630.
This is a suit in equity to set aside as a cloud upon plaintiff's title to lot one, Marine's Second Addition to Kansas City, Missouri, a taxbill for $ 862.25, dated January 29, 1902, payable in four annual installments, issued by the board of public works of said city, to the Barber Asphalt Company, for the paving of Broadway, a public street, from the south line of Thirty-fifth street west of Broadway to the north line of Thirty-sixth street west of Broadway. In the petition the taxbill was alleged to be void for various reasons, but only one of them is in issue on this appeal.
Judge Shannon C. Douglass, before whom the case was tried, without passing upon the other grounds relied on by plaintiff, held that the taxbill was void for the reason; "That the time of beginning of the work for which said taxbill was issued was an essential condition of the contract, and that said work was not commenced within the time specified and the contract thereby became forfeited, and defendant had no authority to begin the work after the expiration of the time so specified which was made an essential provision in the contract." The defendant filed a motion for a new trial which was not heard during Judge Douglass' term of office. Judge McCune, his successor, in office, sustained said motion and granted defendant a new trial and the plaintiff appealed. The only issue before us is whether the time within which the work of the defendant was to commence was an essential provision of the contract.
The time, within which the work was to commence, was not fixed by the ordinance providing for the street improvement; the ordinance confirming the written contract, provided that the work should "be executed according to the plans and specifications mentioned in said contract and that said contract be and the same is hereby confirmed." The specifications in the contract in reference to that matter are as follows: Section 6 of the general specifications in the contract provides as follows:
And the contract further provides: "If the work embraced in this contract be not begun within ten days after this contract binds and takes effect, and prosecuted regularly and uninterruptedly thereafter in accordance with the terms and provisions thereof (unless the city engineer shall specially direct otherwise in writing) with such force as to secure its full completion within two months from the date of its confirmation, they will pay to Kansas City the sum of eleven hundred and ninety-seven dollars as liquidated damages for such breach of the contract."
An ordinance of the city was passed on September 23, 1901 approving said contract. On November 8, 1901, the time for the completion of the work under the contract was extended by ordinance of the city to December 23, of that year. Section 2 of this ordinance provides that, "All ordinances or parts of ordinances are, insomuch as they are in conflict with this ordinance hereby repealed." It was admitted at the trial that the work was completed within the time fixed by the ordinance in question extending the time to December 23. The evidence was that the work was not commenced until October 16, 1901, about ten days after the time required by the specifications which were made a part of the contract. The defendant's excuse for not beginning the work within the time provided by the contract was, that there was a street railway...
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