Meyer v. Wright

• Decision Date: 09 November 1885
• Citation: 19 Mo.App. 283
• Parties: H. G. MEYER ET AL., Appellants, v. LUCIUS C. WRIGHT, Respondent.
• Court: Missouri Court of Appeals

19 Mo.App. 283

H. G. MEYER ET AL., Appellants,

v.LUCIUS C. WRIGHT, Respondent.

Kansas City Court of Appeals, Missouri.

Nov. 9, 1885.

APPEAL from Jackson Circuit Court, HON. TURNER A. GILL, Judge.

Affirmed.

Statement of case by the court.

This suit was brought by appellants as assignees of one Patrick Keating, by publication against respondent, a non-resident, to charge the property of respondent with the payment of two special tax bills issued to said Keating by the city engineer of the City of Kansas, as the contractor for grading a portion of Tracy avenue. One of the tax bills was for $36.61, and the other for $69.76, the former being issued for grading the street proper, and the latter for grading the sidewalks. The total cost of the work for the street proper was $853.41, and for the sidewalks $303.32, making in all $1,156.

The defence set up was, first, a general denial, and, second, that the work for which the tax bills were issued, and which was required to be done by the contract and ordinance authorizing it, was never completed.

The reply was a general denial of the new matter set up in the answer.

The ordinance and contract, which were read in evidence by the respondent, required the street to be graded down to the established grade, and to its full width of sixty feet, including sidewalks.

The following instruction, among others, was given for the plaintiff:

“2. If the court finds from the evidence that the work done by Keating in grading Tracy avenue, under contract with the city, was substantially complied with, the work accepted by the city engineer, and the tax bills in payment therefor duly issued--two of which are the tax bills in suit--then the plaintiffs are entitled to recover, and the cost of any work necessary to fully complete said contracts is to be deducted from the cost of the whole work, and a proportionate reduction made from the tax bills in suit.”

The following was offered by plaintiff and refused:

“3. If it appear from the evidence that the work of grading Tracy avenue from Independence avenue to Fifth street, under contract with the city, was not, for about ninety feet through the rock work, completed to the full width of the street, or not, for about the same distance, brought to the established grade, but the same was accepted by the city engineer as complete, and the tax bills issued in payment therefor, two of which are the tax bills in suit, then plaintiffs are entitled to recover, but the amount that it would cost to complete the street to the full width throughout, and to bring the same fully down to grade, should be deducted from the total cost of the work, and a proportional part of said deduction should be made from the tax bills in suit.”

The court found for defendant and plaintiffs appeal.

LATHROP & SMITH, for the appellants.

I. The court should have given the third instruction asked by plaintiff.

II. The finding should have been for plaintiffs

under the instructions given for them, with a proper reduction of the amount of the tax bills. The grading had been substantially completed, and the inconsiderable amount needed to do the work lacking, it was proper to apportion along the whole line of the work, and not deduct the entire amount from defendant's bills, or hold the tax bills altogether invalid. This applies both to the grading of the street and the sidewalk.

III. Section four, of Article VIII, of the charter of the City of Kansas (Acts 1875, p. 252) provides for reductions being made in the amounts of special tax bills, and the principle here invoked finds support in the following cases: Neenan v. Smith, 60 Mo. 292; First Nat'l Bk. v. Amaldia, 63 Mo. 229; Same v. Nelson, 64 Mo. 418; Farrar v. St. Louis, 80 Mo. 379.

GAGE, LADD & SMALL, for the respondent.

I. The third instruction was properly refused. It assumed that plaintiffs could recover, although the work had not been completed, and that although the work yet remaining to be done was in front of defendant's property, he was not to be allowed what he was specially damaged, but only a part of such damage. If tax bills are issued before the street is graded to the full length required by the contract, the tax bills are premature and void. City of St. Louis v. Clemens, 49 Mo. 552; Kiley v. Cranor, 51 Mo. 542. And the same rule holds good when the required depth and width are wanting.

II. The section (4, Art. VIII) of the charter of Kansas City, cited by appellants, applies only to cases where the work has been completed, but completed in a negligent and unworkmanlike manner, and even then contemplates a different theory for reducing the tax bills from that announced in the instruction refused. That section...