Perkinson v. City of St. Louis

• Decision Date: 03 July 1877
• Parties: HENRY PERKINSON, Plaintiff in Error, v. CITY OF ST. LOUIS, Defendant in Error.
• Court: Missouri Court of Appeals

4 Mo.App. 322

HENRY PERKINSON, Plaintiff in Error,

v.CITY OF ST. LOUIS, Defendant in Error.

St. Louis Court of Appeals, Missouri.

Jul. 3, 1877.

Where a city charter provides that no improvement shall be ordered “except by ordinance which shall set apart a specific appropriation for the work ordered,” a contractor cannot recover for work done under order of the city engineer, when he knew, or might have known, that the work was in excess of the appropriation therefor. Such charter provision was a fact of which the contractor was bound to take notice.

ERROR to St. Louis Circuit Court.

Affirmed.

DAILEY & ADAMS, for plaintiff in error.

E. T. FARISH, for defendant in error.

BAKEWELL, J., delivered the opinion of the court.

This is an action upon a special contract for grading and macadamizing Grand Avenue from Chouteau Avenue to the Gravois Road, in St. Louis. The petition alleges that on June 13, 1866, the plaintiff made an agreement in writing with the defendant, signed and sealed by plaintiff and subscribed by defendant, acting therein by and through Truman J. Horner, its city engineer, duly authorized for that purpose, whereby plaintiff agreed to grade and macadamize Grand Avenue from Chouteau Avenue to the Gravois Road, or so much thereof as may be ordered, strictly in accordance with the directions of the city engineer, and under his supervision and control, the work to be done in a certain specified manner, fully set out in the petition; that defendant, by said agreement, was to pay plaintiff 33 cents per cubic yard and $6.40 per square of 100 cubic feet for macadamizing, the grading to be paid for as the work progresses, at the discretion of the city engineer, by warrants of the city auditor drawn on the city treasury, payable out of the funds available for the improvement of streets and alleys, and the macadamizing to be paid for by special tax bills against adjacent property; that the contract was approved by the city counsellor, and by the board of delegates and the board of aldermen, whereupon it became obligatory and binding upon the parties thereto; that afterwards, in 1866, plaintiff was ordered by defendant to proceed to do all the work embraced in the contract, and in pursuance of this order, and the contract, he began the work, and continued the same until stopped by defendant without any legal excuse or ground for stopping him; that at such time plaintiff had performed 290,047 cubic yards of grading, and that there was then remaining to be done of said grading, in order to the completion of the same, 145,000 cubic yards, and that there was then remaining to be done of said macadamizing, in order to the completion of the same, 3,000 squares; that at the prices stipulated plaintiff would have realized a large profit upon the said grading and macadamizing so remaining to be done, if the defendant had permitted him to do the same in pursuance of the agreement; that at the time of the refusal there were in the street and alley fund of defendant's treasury funds available for the grading work embraced in said agreement, and that there have since been sufficient funds in the fund of said treasury, available for said grading work, to have fully paid for their completion. Plaintiff says that defendant has paid him on account of said grading work the sum of $6,425, and there was due him on the ____ day of ____, 18--, the balance of $3,150.17 on account of said grading work done as aforesaid; that said sum was on that day demanded of the defendant, but no part thereof has been paid. Plaintiff says that he has been damaged, by being prevented from performing his contract, in the sum of $10,250, for which and for said balance, with interest thereon and costs of suit, he prays judgment.

Plaintiff, for another further cause of action, says that from the _____ day of _____, 186--, to the _____ day of (5) 6D, 186--, he, at the instance and request of defendant, and under the order and direction of its then city engineer, did 500 cubic yards of grading on ______, between the Pacific Railroad and Mill Creek sewer, which was reasonably worth the sum of 33 cents per cubic yard, whereby defendant became indebted to plaintiff in the sum of $165, for which, with interest and costs, he asks judgment.

Defendant demurred to the first count of the petition, on the ground that it improperly united a claim for a balance due on contract with a claim for damages for breach of contract. To the second count defendant demurred on the ground that it did not set forth facts sufficient to constitute a cause of action. The demurrer was overruled as to the first count, and sustained as to the second count.

The answer admits the making of the contract as alleged, and says that the contract contained these conditions, not set out in the petition:

“And it is hereby distinctly understood and agreed that the city engineer shall have the right to suspend this contract, or annul the same, whenever the appropriations made therefor by ordinance are either exhausted or unavailable.

This contract is entered into subject to the provisions of the existing ordinances of the city, and to the express power of the city engineer to suspend or annul said contract for any failure on the part of the contractor to fulfil or comply with same. Should the work be suspended or annulled by the city engineer, it shall not entitle the contractor to any damages on account thereof.”

The defendant also says that by ordinance No. 5740 the sum of $3,000 was appropriated for the work in question, and by ordinance No. 8825 the further sum of $3,500 was so appropriated, and that no other or further appropriations for the same have ever been made; that up to July 24, 1867, plaintiff had done grading under said contract amounting, at the rates stipulated in said contract, to the sum of $6,494.34, which exhausted the appropriation for said work, with the exception of $5.66, and that there was duly paid to the plaintiff by defendant, at the time, $6,425, leaving a balance of $69.34 due plaintiff, which was duly tendered; that due notice that the fund was exhausted, and that the work was suspended for that reason, was given to plaintiff. The answer denies that there were funds for said work in the city treasury, except as stated in the answer, and says that there have been no funds since in the treasury for that purpose; and says that plaintiff was entitled to do only so...