Mullins v. Kansas City

• Decision Date: 05 July 1916
• Citation: 188 S.W. 193,268 Mo. 444
• Parties: W. C. MULLINS v. KANSAS CITY, Appellant
• Court: Missouri Supreme Court

188 S.W. 193

268 Mo. 444

W. C. MULLINS v. KANSAS CITY, Appellant

Supreme Court of Missouri, Second Division

July 5, 1916

Appeal from Jackson Circuit Court. -- Hon. Frank G. Johnson, Judge.

Reversed.

A. F Evans, A. F. Smith and J. A. Harzfeld for appellant.

(1) If the hauling of earth from the more distant borrow pit was outside of and in addition to plaintiff's obligations under the contract, he would be entitled to compensation for the overhaul only upon showing a written agreement for such overhaul, signed by both parties to such agreement, and at a price agreed upon between him and the city in advance of the doing of the work, and in the absence of such showing plaintiff's action must fail. Sec. 6759, R. S. 1899, now Sec. 2778, R. S. 1909; Cook & Son v. Cameron, 144 Mo.App. 137; Likes v. Rolla, 184 Mo.App. 296; Cotter v. Kansas City, 251 Mo. 229; Construction Co. v. St. Louis, 256 Mo. 341; State ex rel. v Dierks, 214 Mo. 588; Municipal Securities Corp. v Kansas City, 256 Mo. 268. (2) The contract executed by the plaintiff also expressly provides, substantially in the language of the statute, that the plaintiff shall not be entitled to make any claim for extra compensation for extra work unless the price for such extra work is "agreed upon in writing at the time but before such extra work is commenced." Plaintiff's contract is, therefore, of itself, an answer to any claim for extra compensation in this case. Plumley v. United States, 226 U.S. 545; Ahern v. Boyce, 19 Mo.App. 556. (3) Plaintiff's contract provided that "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." The earth on the property then owned by the city proving unfit for use in the embankments, the Board of Fire and Water Commissioners secured the ground adjoining the property then owned by the city, which was the nearest ground available for a borrow pit. Plaintiff was bound, under his contract, to haul earth from this new ground, and he is not entitled to exact compensation on that account. Wear Bros. v. Schmelzer, 92 Mo.App. 314; Wilson v. St. Joseph, 125 Mo.App. 460; Dearborn Co. v. K. C. Co., 188 Mo.App. 212. All negotiations had prior to the making of plaintiff's written contract were merged in that contract. Ijams v. Provident Society, 185 Mo. 499. Even if all prior negotiations were not merged in the contract finally executed, plaintiff could not base a claim upon the statements of any representative of the city unless it has been established that that representative was authorized to bind the city by his statements. Midland Lbr. Co. v. Kreeger, 52 Mo.App. 418; Walkeen Co. v. Johnston, 131 Mo.App. 699; Cook v. Cameron, 144 Mo.App. 146.

Fyke & Snider for respondent.

(1) As there was a written agreement for doing the work generally and there was a written order upon respondent making the change, no further written agreement was necessary because the city in its relation of the waterworks occupies the same position as a private corporation or private individual, and may be bound in the same way. The city by its board ordered respondent to do the work, accepted the benefit of his work, and recognized its obligation, after as well as before the work was done, to pay for it. In all fairness and justice it ought to pay. Water Co. v. Aurora, 129 Mo. 540; Steffen v. St. Louis, 135 Mo. 44; State ex rel. v. St. Louis, 145 Mo. 551; Simpson v. Stoddard County, 173 Mo. 421; State ex rel. v. Gates, 190 Mo. 540; Barree v. Cape Girardeau, 197 Mo. 382; Riley v. Independence, 258 Mo. 671; Heman v. St. Louis, 213 Mo. 538; McHugh v. Tacoma, 135 P. 1011; Contract Co. v. Tacoma, 140 P. 373; Audit Co. v. Louisville, 185 F. 349; Des Moines v. Welsbach, 188 F. 906; 2 Herman on Estoppel, 1365; Laird Norton Yards v. Rochester, 117 Minn. 114; Brantman v. Canky, 119 Minn. 396; Stifel v. St. Louis, 181 S.W. 577. (2) The specifications provide that bidders shall examine the topography of the ground and satisfy themselves as to the distance of the haul, etc. At the time the contract was let the city only owned one tract of ground which was close to the settling basin and the bids were made upon the theory that the earth would be taken from that hill. That it might be taken from some other property a further distance away was not within the contemplation of the parties and therefore the city had no right without paying respondent the extra cost to send him to a further tract of ground to procure the earth with which to construct the settling basin. Koehring v. Muemminghoff, 61 Mo. 403; Crawford v. Elliott, 78 Mo. 497. (3) Moreover there is no rule of law that prevents parties from modifying or changing the terms of a written contract after it is made, as was done in this case. The specifications which provided that bidders should satisfy themselves as to the distance of the haul, etc., is as much a part of the contract as any other part of it, and the order directing respondent to abandon the hill where he had begun work, and where he had expended a large amount of money, was given after the original contract had been made, and after work had been commenced. The contract could not prevent the parties from changing the written contract by a subsequent parol contract -- even if no written order had been given by the board directing the respondent to get earth from the other hill. Parties cannot by written agreement bind themselves not to subsequently waive or modify or change its terms by parol. Burnham v. Ins. Co., 63 Mo.App. 85. (4) Both sides offered evidence as to the reasonable expense of hauling the additional distance, and such reasonable cost was the proper measure of damages. Johnson Co. v. Ice Co., 143 Mo.App. 452. (5) Kansas City, being a city of more than one hundred thousand inhabitants, its charter adopted by the people is its organic law. Sec. 9704, R. S. 1909. Sec. 6759, R. S. 1909, does not apply to cities of one hundred thousand inhabitants, or more, and is not applicable in this case. Kansas City v. Oil Co., 140 Mo. 470; State ex rel. v. Field, 99 Mo. 352; Kansas City v. Bacon, 147 Mo. 259; Brunn v. Kansas City, 216 Mo. 108. But if section 6759 is applicable, then it would seem that section 3728, R. S. 1909, is also applicable. It is a later statute. Miller v. Douglass Co., 204 Mo. 194. (6) The written order to respondent was sufficient written agreement on the part of the board to require him to make this extra haul.

OPINION

FARIS, P. J.

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 $ 9000. 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, Kansas, 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 forty-five 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 twenty thousand 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 eight hundred and fifty feet further away from said embankment than 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 seventy-eight thousand cubic yards, from said distant hill, whereby plaintiff was put to great additional cost and expense in...