Neenan v. Smith

• Decision Date: 31 May 1875
• Citation: 60 Mo. 292
• Parties: JOHN NEENAN, Respondent, v. FREDERICK W. SMITH, Appellant.
• Court: Missouri Supreme Court

60 Mo. 292

JOHN NEENAN, Respondent,

v.FREDERICK W. SMITH, Appellant.

Supreme Court of Missouri.

May Term, 1875.

Appeal from Buchanan Circuit Court.

Ben. Loan, for Appellant.

I. The tax bill which will authorize a recovery must be for work specified in the contract and no other. If work not so included was done on Felix, Francis or Ninth Streets, and the cost thereof was added to the work specified in the contract, and the whole amount apportioned to the property fronting on the work specified in the contract to be done, then such apportionment was unauthorized and is void. (St. Louis v. Clemens, 49 Mo. 552.)

II. The court erred in giving the 1st instruction as asked by the plaintiff. Tax bills are not prima facie evidence of the validity of the claim. (Hægele vs. Malinckrodt, 46 Mo., 577.)

III. The whole contract must be completed before any tax bills can be lawfully issued. (St. Louis, &c., vs. Clemens, 49 Mo., 553; Kiley vs. Cranor, 51 Mo., 541.)

Vineyard & Vories, for Respondent.

I. The legislature intended to make the bills not only prima facie evidence that the work and materials were furnished as charged, but also that the person therein named as owner of the property was “liable” as therein charged. (City of St. Louis to use, &c., vs. Hardy, 35 Mo., 261; City of St. Louis to use, &c., vs. Coons, 37 Mo., 48; City of St. Louis to use, &c., vs. Armstrong, 38 Mo., 33: Neenan vs. Smith, 50 Mo., 525.)

II. Plaintiff's instructions properly confined the jury in their finding to work done on Frederick Avenue. (Neenan vs. Smith, supra.)

III. The first instruction refused defendant is not the law. It would have made the jury find for the defendant, if there had been a single item of ten cents charged in the bill not covered by the contract.

WAGNER, Judge, delivered the opinion of the court.

We see no error in the instructions given for the plaintiff. The amended city charter of St. Joseph provides that whenever the mayor and city council shall order the paving, mac adamizing, guttering, cross-walks, side-walks or curbing of the carriage ways, intersections and side-walks of any street, lane, alley or avenue within the limits of said city, the cost of the same shall be paid by the owners of the property in the vicinity. (Acts 1865, p. 435, § 4.)

The fifth section of the act provides that whenever the work shall have been fully completed under the authority of an ordinance, the city engineer or other officer having charge of the work, shall compute the cost thereof and assess it as a special tax against the adjoining property fronting upon the work done, and each lot of ground shall be charged in proportion to the frontage thereof, with the cost of construction, &c. The officer is then authorized to make out a certified bill of such assessment against each lot of ground chargeable with the work done in the name of the owner thereof, and he is required to keep a record of such bill or account in a properly bound book in his office, which book is subject to the inspection of any citizen. Every such certified bill, when an action is brought to recover the amount thereof, is made prima facie evidence that the work and materials charged in such bill have been furnished, and of the liability of the person therein named as the owner of the property. Under this provision the owner of the property is liable for the amount of the indebtedness as charged in the bills. The bills make a prima facie case of the facts and liabilities stated in them, and present a valid claim till rebutted by countervailing evidence.

The finding was limited to that part of the work done on Frederick Avenue, between Eighth and Ninth Streets, which was the part of the avenue covered by the plaintiff's contract, and that was in accordance with the decision of this court when this case was here before. (Neenan vs. Smith, 50 Mo., 525.)

The court properly enough refused defendant's first instruction, because it made the tax bills entirely void if any other work or materials were apportioned or assumed in the bills than what was included in the contract. This would have invalidated the bills and deprived the contractor, who had honestly done his work, of all redress, if the engineer had made a trifling mistake in the matter of the computation or assessment. A proposition which would lead to such a result would be manifestly unjust, and cannot be law.

Defendant's own instructions required the jury to reduce the...