Montague v. W. H. Kolkmeyer & Co.

• Decision Date: 14 June 1909
• Citation: 138 Mo. App. 288,120 S.W. 637
• Court: Missouri Court of Appeals
• Parties: MONTAGUE v. W. H. KOLKMEYER & CO. et al.

120 S.W. 637

138 Mo. App. 288

MONTAGUE v. W. H. KOLKMEYER & CO. et al.

Kansas City Court of Appeals. Missouri.

June 14, 1909.

1. APPEAL AND ERROR (§ 907)—AFFIRMANCE —FAILURE TO SHOW ERROR.

Where there is nothing before the appellate court for review but the petition, answer, reply, and judgment, every inference in favor of the judgment must be indulged, and the judgment

must be affirmed, unless the face of the pleadings affirmatively shows reversible error.

2. MUNICIPAL CORPORATIONS (§ 362)—PUBLIC IMPROVEMENTS—CONTRACTS—TIME FOR PERFORMANCE.

In the absence from the ordinance providing for the improvement of a street of some provision prescribing the time for completion, time is not of the essence of the contract, although the contract itself fixes a limit, but the work must be done within a reasonable time, and the time which both parties regarded as reasonable when the contract was made will be presumed to have been a reasonable time, but such presumption is not conclusive, and, where subsequent events show that the time was not reasonably sufficient, it may be extended by ordinance before the expiration of the period for a length of time which is not unreasonable.

3. MUNICIPAL CORPORATIONS (§ 362)—PUBLIC IMPROVEMENTS—CONTRACTS—EXTENSION OF TIME.

Where the time allowed for the completion of a contract for the improvement of a street is found to be too short by reason of excessive rainfall, floods, and continued bad weather, and the contract fails to provide for an extension of time for such causes, the time for the performance of the contract may still be extended, though the city need not do so.

4. MUNICIPAL CORPORATIONS (§ 513)—PUBLIC IMPROVEMENTS—PROCEEDINGS TO CANCEL SPECIAL TAX BILLS—JUDGMENT.

In an action to cancel special tax bills issued to pay for a street improvement, it is not error to include in the judgment a finding that the tax bills constitute a valid lien on plaintiff's property, for, although defendants did not seek affirmative relief, the effect of the judgment in their favor is to adjudicate the issue of the validity of the tax bills.

Appeal from Circuit Court, Carroll County; John P. Butler, Judge.

Action by M. L. Montague against W. H. Kolkmeyer & Co. and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Robert M. Reynolds, Virgil Huff, and Thomas H. Harvey, for appellant. A. B. Hoy and A. R. James, for respondents.

JOHNSON, J.

This is a suit in equity for the cancellation of certain special tax bills issued by the city of Marshall, a city of the third class, in payment of the cost of macadamizing, curbing, and grading one of the public streets of that city. No bill of exceptions is in the record, and we have before us nothing but the record proper. A trial to the court resulted in a judgment for the defendants, and the cause is here on the appeal of plaintiff.

The ordinance authorizing the improvement, entitled "An ordinance to macadamize, curb and grade West Arrow street from the center line of English avenue to the west line of Benton avenue, in the city of Marshall, Missouri," was passed July 3, 1905. Its conformity to the requirements of the statute is conceded in the pleadings, but its provisions are not pleaded. As there is nothing before us for review but the petition, answer, reply, and judgment, every inference in favor of the judgment must be indulged and the judgment must be affirmed, unless the face of the pleadings affirmatively shows it to be infected with reversible error. Geltz v. Amsden, 125 Mo. App. 592, 102 S. W. 1037; Barnes v. Buzzard, 61 Mo. App. 346; Gunby v. Rogers, 42 Mo. App. 465; State ex rel. v. Sanford, 181 Mo. 134, 79 S. W. 898. We therefore assume that the ordinance did not specify a time for the completion of the improvement. It appears from the answer that the contract for the work, made August 7, 1905, provided: "That the work embraced in this contract shall be begun with ten days after this contract binds and takes effect, and shall be prosecuted regularly and uninterruptedly thereafter (unless the street commissioner directs otherwise in writing), with such force as to secure, on or before the 7th day of December, 1905, the full completion of all the work embraced in this contract, and if the contractor shall fail to fully complete all the work embraced in this contract within the time above specified, an amount equal to the sum of ten ($10.00) dollars per day for each and every day thereafter until such completion, shall be deducted as liquidated damages for such breach of this contract, from the amount of the final estimate of such work." The answer admits that the work was not completed within the time specified in the contract, and alleges that the failure so to do was owing to unfavorable weather conditions (described as an act of God), which made it impossible to prosecute the work and complete it in the prescribed time; that, before the expiration of the period, to wit, December 4, 1905, the city passed an ordinance extending the time for the completion of the work to January 7, 1906; that on January 1st a second ordinance was passed further extending the time to January 17th; that the work was completed "within a very short time after the 7th day of December, 1905, and within a reasonable time thereafter"; that the work was duly accepted by the city by ordinance passed January 15, 1906; and that in making the assessment the city deducted $390 as a penalty for the delay in the completion of the work beyond the time fixed in the contract.

The grounds on which the validity of the assessment is assailed in the petition are, in substance, that the improvement was not completed in the time required by the ordinance and contract, and was not constructed in conformity to the specifications. The judgment rendered by the court is as follows: "The court finds that there has been a substantial compliance with the terms of the contract and ordinance introduced in evidence and under which the...