Mullins v. Kansas City

• Decision Date: 05 July 1916
• Docket Number: No. 17923.,17923.
• Citation: 188 S.W. 193,268 Mo. 444
• Parties: MULLINS v. KANSAS CITY.
• Court: Missouri Supreme Court

188 S.W. 193

268 Mo. 444

MULLINS v. KANSAS CITY.

No. 17923.

Supreme Court of Missouri, Division No. 2.

July 5, 1916.

Appeal from Circuit Court, Jackson County; Frank G. Johnson, Judge.

Action by W. C. Mullins against Kansas City. Judgment for plaintiff, and defendant appeals. Reversed.

Plaintiff sued defendant for damages alleged to have accrued to him for violation of a contract for the construction of a settling basin for defendant's waterworks system, and had judgment for $9,000. From this judgment, after the usual motions, defendant appealed.

The facts shown by the record, so far as they are necessary to understand the conditions existing and the law applicable, are fairly simple, and except upon one point, to which we shall hereafter advert, are practically undisputed. They are, to wit: That in November, 1908, defendant city was desirous of having constructed at Quindaro, Kan., an additional settling basin for its municipal waterworks system, and to this end advertised for bids for the construction thereof. Plaintiff was a bidder for the doing of this work. His bid was accepted, and in due course he entered into a written contract with defendant for the doing of the same, under certain specifications and conditions, which we shall, as to pertinent parts, hereinafter refer to and set out. It is an exceedingly difficult task to characterize the petition of plaintiff herein, since it is to an extent sui generis. We shall therefore, in fairness, set out below the salient parts thereof, and which set forth, as we understand it, the position of plaintiff. These are as follows:

"As an inducement to plaintiff to enter into said contract, said defendant, by the board of light and water commissioners and the chief engineer of the water department, pointed out to plaintiff said tract of ground adjacent to said proposed settling basin, which ground consisted of a large, high hill, and represented to plaintiff, and agreed with him, that all the earth necessary to be used in the construction of the embankments aforesaid would be furnished by defendant, and should be taken by plaintiff from said hill, and relying upon said representation and agreement, and being induced thereby, plaintiff duly entered into a contract with defendant to haul and place the necessary earth in said embankment at 45 cents per cubic yard. Said hill so designated by defendant was covered with trees and brush, so that it was necessary for plaintiff to clear off said trees and brush, preparatory to commencing said work, and plaintiff did, under the orders and directions of defendant, clear off said land at great expense to himself, and did put the same in condition to remove the earth therefrom, and did excavate and remove therefrom and place in said embankment above 20,000 cubic yards of earth.

"About April 1, 1909, plaintiff was, in violation of said contract, stopped by defendant from taking earth from said adjacent hill, and was, in violation of said contract, by defendant ordered and directed to procure the remaining necessary earth for said embankment from another tract of ground, which was 850 feet further away from said embankment then the hill first herein referred to, and plaintiff was compelled to, and did, under the orders and directions of defendant, procure the remaining necessary earth for said embankment, to wit, about 78,000 cubic yards, from said distant hill, whereby plaintiff was put to great additional cost and expense in clearing the trees off said hill and in hauling the earth said additional distance, and was greatly delayed in the completion of said work, to his great damage, to wit, in the sum of $30,600. Wherefore plaintiff prays judgment against defendant for said sum of $30,600."

Upon the trial of the case plaintiff did not offer in evidence the contract above referred to and which was entered into between him and defendant. At the close of the testimony defendant interposed a demurrer to the evidence, which the court overruled. We merely state this, so as to throw light on the attitude of plaintiff as regards the allegations of his petition, and not as intimating that such demurrer should have been sustained for lack of offering this contract on plaintiff's side of the case; for since, as it was offered by defendant, who did not stand upon its demurrer, it is in the case for all purposes anyhow. This contract provides, as to the places from which earth for the making of the embankments for the settling basin shall be obtained, thus:

"It is expected that earth for the construction of the embankments will be procured on property owned by Kansas City, or on such property as the board of fire and water commissioners may secure." (Italics ours.)

At the time of entering into this contract by the parties herein, defendant city owned a parcel of land which adjoined the old settling basin and was near the proposed new one, which was to be constructed by plaintiff, and which new one adjoined the old basin. After some 20,000 cubic yards of embankment had been built from earth obtained from the land of the defendant above mentioned, it was discovered by the engineers of the city (who under the contract had the ultimate right of decision as to the quality of materials) that the earth in this land, which consisted of a hill, was not of the proper quality out of which to construct the embankment. It was found that it consisted, not of clay, which was required, but of gravel and sand, mixed with boulders, so that it became necessary to acquire another place from which to obtain the necessary earth. The defendant thereupon purchased 80 acres of land adjoining the original hill, which it owned, and notified plaintiff to obtain the remaining necessary earth for the construction of the embankments from the latter place. Some 97,000 cubic yards of earth were required for the embankments. Plaintiff obtained about 20,000 cubic yards of this from the old pit, and took the remainder, some 77,000 cubic yards in all, from the new pit on the land last purchased. Before doing this, however, plaintiff went before the board of fire and water commissioners (hereinafter for brevity and convenience called simply fire and water board) and complained that the obtaining of earth from the new pit, which was 447 feet from the old pit, or which necessitated an increased average haul of that distance, was not within his original contract. The fire and water board contended that it was. Plaintiff seems to have insisted that he should have a written order from said board to go on with this work. The fire and water board made no entry anywhere, or in any wise upon their records, touching the matter of so-called extra haul, nor of plaintiff's appearance and contentions; so proof of the matter rests wholly in parol assertion and in parol denial. Relating what transpired before this board plaintiff, testifying for himself, says:

"I went down to them and wanted a written order to go on with this work, and I wanted to know how much they were going to pay me for the extra work. At the time Mr. Brent, Mr. Groves, and Mr. Meyers were the members of the fire and water board. They wouldn't enter into any written agreement that evening, but Mr. Groves and Mr. Brent told me I would be paid. They said to go ahead and do the work, and it would be settled for after it was completed."

Plaintiff, as he states, insisted upon having a written order as to going on with this work and as to change of location of the pit from which he got the earth for the embankments. Shortly after plaintiff appeared before the fire and water board, and had, as he relates, the conversation set out above, said board procured the writing to him by their consulting engineer of a letter, which is referred to by plaintiff as the order to proceed with the work. This letter is pertinent, and is for some reason much relied on by plaintiff. Omitting signature and merely formal parts, it reads as follows:

"It does not appear as though sufficiently rapid progress is being made in the construction of the settling basin at Quindaro, and it is desired that you employ a larger force in order to utilize fully this favorable season for construction and to secure a rate of progress which is consistent and in harmony with the terms of the contract. You have already been verbally notified that the new ground purchased by the board of fire and water commissioners, adjoining the ground from which you are now taking earth for the reservoir embankment, is available for your use under the directions of the constructing engineer and under the terms of your contract. Will you kindly give this matter your early attention, in order to insure the desired rate of progress?"

This letter, it will be noted, does not recognize the extra haul necessitated as being beyond the original contract, but expressly says that it is within such contract. Plaintiff thereupon proceeded with the work. He constructed the embankments about which this controversy revolves, and from time to time, on estimates of the work completed, was paid therefor at the original contract price set out in the written contract between him and defendant, which price and payment he accepted without objection so far as the record shows. He seems to have been paid in full at the contract price for the entire work at its conclusion, and touching any part thereof, except the compensation sued for, arising from increase in length of haul, he makes no claim. The written contract made between plaintiff and defendant, and referred to above, is exceedingly lengthy. No good, commensurate with the labor and space involved, would be subserved by setting out herein the whole of it. Pertinent parts thereof, which will be referred to in our discussion of the case, read thus:

"31. The said board of fire and water commissioners shall have the right to make any alterations that may hereafter be considered by them as necessary and desirable in the interest of the...