Myers v. Wood

• Decision Date: 07 July 1913
• Parties: MYERS et al. v. WOOD et al.
• Court: Missouri Court of Appeals

158 S.W. 909

MYERS et al. v. WOOD et al.

Springfield Court of Appeals. Missouri.

July 7, 1913.

1. MUNICIPAL CORPORATIONS (§ 304) — SEWERS — ORDINANCE.

The fact that the resolution and ordinance providing for the construction of a sewer required a drainage and sanitary sewer, when the specifications only called for a sanitary sewer, which was constructed, will not make tax bills issued therefor invalid, where the ordinance establishing the sewer district and contract for the construction of the sewer required it to be built according to the plans and specifications on file, thereby making the plans, with which the sewer constructed conformed, a part of the ordinance.

2. CONTRACTS (§ 156) — CONSTRUCTION.

A particular description in a contract following a general description controls such general description.

3. EVIDENCE (§ 387) — PAROL TESTIMONY — AFFECTING WRITINGS.

The file mark on plans and specifications for public improvements is not conclusive as to when they were filed, and oral testimony is admissible to show the actual time of filing.

4. MUNICIPAL CORPORATIONS (§ 330) — PUBLIC IMPROVEMENTS — BIDS — COMPETITIVE BIDDING.

That there was but one bid for constructing a sewer did not prevent the bidding from being competitive, where there was a compliance with the law in establishing the district, publishing the notice for bids, and letting the contract.

5. MUNICIPAL CORPORATIONS (§ 321) — PUBLIC IMPROVEMENTS — SEWER CONSTRUCTION — JUDICIAL REVIEW.

It cannot be shown to defeat tax bills issued for sewer construction that the building of the sewer was practically a confiscation as to certain property owners; that not being a judicial question.

6. MUNICIPAL CORPORATIONS (§ 330) — SEWER CONSTRUCTION — CHANGE OF PLANS.

That the line for constructing a sewer was changed from a street, where much blasting would have been required, to the alley in the same block, where there were no such obstructions, will not invalidate tax bills issued for the work on the ground that the change prevented competitive bidding; since such obstructions could not have been foreseen when the original plans were made and the work submitted for bids.

7. MUNICIPAL CORPORATIONS (§ 359) — PUBLIC IMPROVEMENTS — PLANS AND SPECIFICATIONS.

A substantial compliance with the specifications in making street improvements is sufficient, and a variation therefrom, not materially affecting the character, location, or cost of

the improvements, or damaging the public or property owners, will not authorize cancellation of taxbills.

Appeal from Circuit Court, Jasper County; Joseph D. Perkins, Judge.

Action by Chas. J. Myers and others against T. K. Wood and others. Judgment dismissing the petition, and plaintiffs appeal. Affirmed.

J. D. Harris, of Carthage, for appellants. George W. Crowder and McReynolds & Halliburton, all of Carthage, for respondents.

FARRINGTON, J.

This is a suit in equity brought by the appellants, owners of certain lots in the city of Carthage, against T. K. Wood, a contractor, and the Central National Bank, alleged to have an interest in the tax bills in question, the object of which was to have canceled certain tax bills against the property of the appellants, issued by the city of Carthage to the contractor for the construction of a district sewer. Appellants' lots were located within the sewer district. The trial court dismissed the petition and gave judgment for the defendants.

The petition attacks the validity of the tax bills on the following grounds: (1) That the ordinance ordering the construction of the sewer did not prescribe the dimensions, material, or character of the sewer to be constructed. (2) That the ordinance passed on March 25, 1912, calling for plans, specifications, dimensions, etc., "then on file with the city clerk," was invalid for the reason that such plans were not in the office of the city clerk at the time, and that the bid of the contractor showed the plans and specifications to be on file in the city engineer's office. (3) That the proposed improvement was not let to competitive bidding, and that the sewer as completed does not conform to the ordinance, plans, and specifications on which the bid was made.

The record before us shows that on March 11, 1912, a resolution was passed by the city council, wherein it was stated that it was deemed necessary to establish a sewer district for sanitary and drainage purposes, and in which the city engineer was directed to make an estimate of the cost of the sewer and detailed plans and specifications showing the dimensions, kind of sewer, manholes, lamp holes, flush tanks, inlets, catch-basins, laterals, and all necessary appurtenances. On March 18, 1912, the city council passed an ordinance establishing the sewer district and giving the boundaries thereof. On March 25, 1912, the city engineer was ordered to advertise for bids, of which advertisement proof of publication was made, and no objection is raised with reference to the publication or the form thereof. On March 25, 1912, an ordinance was passed providing for the construction of a sewer in the district in question, and providing that the same should have all the necessary laterals, manholes, flush tanks, junction pieces, connections, and all other appurtenances, the same as that ordered by the ordinance establishing the sewer district. This last-mentioned ordinance located the beginning and ending of the district sewer and the line on which it was to be constructed, and by clause 3 thereof specially provided that it should be built in accordance with the plans and specifications of the city engineer "now on file in the office of the clerk," and provided that these plans and specifications "are hereby made a part of this ordinance."

It is unnecessary to notice anything in the plans and specifications except the following provisions:

"Location.

"The sewer shall be located on the lines shown on the plans of the work, and will be staked out by the engineer. The engineer, however, reserves the right to move the line of sewers to the right or left whenever obstructions are met with which render a change of line desirable."

"Protection of Water and Gas Pipes, etc.

"The contractor shall do whatever may be necessary to keep in position and to protect from injury all water and gas pipes, lamp posts, service pipes, and all other fixtures which may be met with in carrying on the work. In case of any of the said gas or water pipes or any other fixtures being damaged, they may be repaired by the parties having control of them, and the expense of such repairs shall be deducted from the amounts which may become due the contractor."

T. K. Wood was the only bidder, and his bid was just within the estimate of the city engineer. An ordinance was passed on May 13, 1912, and accepted by Wood on May 16, 1912, contracting with Wood for the construction of said sewer, which said ordinance provides that said Wood shall furnish all material and do all work necessary to construct the sewer with all required laterals, manholes, lamp holes, etc., as defined and prescribed by the plans and specifications therefor "now on file with the city clerk," and providing that the plans and specifications are made a part of the contract ordinance. The ordinance, in addition to referring to the plans and specifications, provides the cost per lineal foot for laying pipe, back-filling and excavating, and provides for the various depths, and for manholes, lamp holes, flush tanks, and outlets. The contract was let on what is generally termed "unit bidding."

Work was begun on the sewer by the contractor, and when he reached a certain point on Main street along which the line of sewer was established, he encountered, according to the claim of the plaintiffs, a heavy limestone bar, high pressure water and gas pipes which had been laid without being cushioned, and that to go farther along Main street on the line originally laid out would require blasting to such an extent as to be very expensive, and there would be great danger of bursting the water and gas mains, for which damage the contractor would have to pay. It seems there was also a street car line running along the center of Main street. The evidence shows that, when this point on Main street was reached, the city engineer and the street and alley committee of the council — whether on their own initiative, on the request of the contractor, or on the request of the property owners living along Main street, we deem immaterial — agreed to change the line of the sewer so that it would go no farther down Main street, but would diverge to the alley which was one-half block west of and parallel with Main street and go north down the alley. Then, in...