Murphy v. Welton

• Decision Date: 10 November 1919
• Docket Number: No. 13307.,13307.
• Citation: 217 S.W. 620
• Parties: MURPHY v. WELTON et al.
• Court: Missouri Court of Appeals

217 S.W. 620

MURPHY v. WELTON et al.

No. 13307.

Kansas City Court of Appeals. Missouri.

November 10, 1919.

Appeal from Circuit Court, Macon County; V. L. Drain, Judge.

"Not to be officially published."

Action by Sallie R. Murphy against Mabel F. Welton and another. Judgment for plaintiff for part of claim, and both plaintiff and defendants perfected separate appeals, which at the hearing and submission were consolidated. Judgment reversed and remanded, with directions.

A. Doneghy, of Kirksville, and Elijah Robinson, of Kansas City, for appellant.

C. E. Murrell, Higbee & Mills, and, Campbell & Ellison, all of Kirksville, for respondents.

TRIMBLE, J.

Plaintiff's action is to enforce a special tax bill issued by the city of Kirksville for the grading and paving and the curbing and guttering of a street. The various steps authorizing the work contemplated that the gutter and curb should be of the "combined" variety (that is, that gutter and curb should be all of one piece), and provided for the letting of the grading and paving as a whole at so much per square yard, and the combined gutter and curb at so much per lineal foot. The bid for doing the work which the council accepted as being the lowest and best bid offered to do the grading and paving for $2.06½ per square yard, and the combined curbing and guttering for 64½ cents per lineal foot. The contract was awarded to the successful bidders in accordance with their bid; the agreement for doing the entire work being embodied in one contract. And the tax bills, when issued, were not separated into those for grading and paving and those for curbing and guttering, but the entire sum to be charged against each piece of property for the above kinds of improvement was in one tax bill and levied as a special assessment against the particular piece of property therein described. The bills bore 8 per cent. interest from 30 days after date.

The defendants, who are owners of the land described in the particular tax bill sued on, opposed the enforcement of the tax bill on the ground that the work was not done in substantial compliance with the requirements of the contract. A jury was waived, and the cause was tried before the court. The amount of the tax bill, and for which suit was brought, was $379.95. The court found that the concrete base for the brick paving was not constructed in substantial compliance with the plans and specifications, but that all other portions of the work did conform thereto, and, on the theory that the cost of the concrete base was 65 cents per square yard, and that the expense thereof to be apportioned to defendants' land amounted "as near as can be computed" to $98.35, deducted this amount from the total amount of the tax bill, leaving $281.60 for which judgment was rendered, with 6 per cent. interest from March 1, 1916, the date of the institution of suit. Both sides separately perfected appeals to this court, which appeals, at the hearing and submission, were consolidated.

Lynch & Murphy, a partnership, were the contractors who did the work and to whom the tax bills were issued. The plaintiff, Sallie R. Murphy, wife of one of the partners, is the assignee of the tax bill sued on.

Plaintiff in her appeal contends that the judgment should have been on the full amount of the tax bill for the reason that its allegations made a prima fade case, and the evidence in support of defendants' contention has not sufficient probative force to overcome that case. Her theory is that defendants' evidence as to noncompliance shows on its face that, under the circumstances, every word of the defendants' evidence might be true, and yet, owing to those circumstances, it would not show that plaintiff's evidence as to substantial compliance is untrue; hence plaintiff says her prima facie case is not overthrown. The claim relied upon to obviate and destroy the probative effect of defendants' evidence is that the examination made by defendants' witnesses whereby they discovered noncompliance on the part of the contractors was made some time after the pavement was laid and the street was used and the pavement cut into by various parties in making excavations for sewers and other purposes, so that plaintiff says defendants' evidence as to defective and inferior materials and insufficient construction does not refer to the concrete base as laid, but to such base after having been used and mutilated by persons making openings in the streets. We are wholly unable to agree with this contention. The record is to the contrary. We have carefully read the evidence, and it shows that some of the examinations were made while the concrete was being laid, other examinations of the concrete base were made at the time the sewer openings were being made, and the...