Porter v. R. J. Boyd Paving & Construction Co.

• Decision Date: 14 July 1908
• Parties: PORTER v. R. J. BOYD PAVING & CONSTRUCTION CO.
• Court: Missouri Supreme Court

112 S.W. 235

214 Mo. 1

PORTER v. R. J. BOYD PAVING & CONSTRUCTION CO.

Supreme Court of Missouri, Division No. 2.

July 14, 1908.

1. SIGNATURES — REQUISITES — MODE OF AFFIXING.

The general rule is that, when a document is required by the common law or by statute to be signed by any person, a signature of his name in his own handwriting is not required, but he may request another to sign his name for him.

2. MUNICIPAL CORPORATIONS — ORDINANCES — APPROVAL BY MAYOR — SIGNATURE — SUFFICIENCY.

Under Rev. St. 1899, § 4160, cl. 7 (Ann. St. 1906, p. 2253), declaring that, where the written signature of any person is required, the proper handwriting of such person shall be intended, and a city charter providing that an ordinance shall be presented to the mayor, who, if he approve the same, shall sign it, the signature of the mayor affixed to an ordinance by a third person under the immediate direction of the mayor and by his authority is nevertheless sufficient, especially where it purports to be signed by the mayor, and is authenticated by the city clerk under the seal of the city.

3. SAME — IMPROVEMENTS — BIDS — NOTICE — PUBLICATION — "TEN SUCCESSIVE DAYS."

The words "ten successive days," in a city ordinance providing for the publication for "ten successive days" of a notice for bids for a public improvement, mean publication on 10 successive days when a newspaper may be published without the publisher running the risk of violating Rev. St. 1899, § 2240 (Ann. St. 1906, p. 1420), prohibiting labor on Sunday, and a publication in a daily newspaper not published on Sunday of a notice in each successive issue from April 5th and ending April 17th is sufficient though there was no publication on the two Sundays intervening.

4. TIME — DAYS — SUNDAY.

In computing time within which an act must be done, Sundays will not, as a general rule, be counted.

5. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — CONTRACTS — NONCOMPLIANCE — EFFECT.

A contractor for the construction of a sewer omitted to build four catch-basins called for by the contract. The city engineer authorized by the contract to decide questions relative to its execution directed the omission for the reason that the street was not on grade. The cost of the basins was not included in the final estimate. Held, that owners of land assessed for the payment of the sewer could not complain because of the failure to construct such basins.

6. SAME — TAX BILLS — ISSUANCE.

In determining whether a sewer has been completed within the charter of a city providing that tax bills for a sewer shall not be issued until the same shall have been completed, and providing that, in a suit on tax bills, defendant may plead and prove in reduction a failure to perform the work in accordance with the contract, etc., the test is whether the sewer is completed, and not whether a detail of the work is in accordance with the contract, and proof that every foot of the pipe of the size required by the ordinance has been laid on the proper grades, and that the work has not been done in accordance with the contract, does not show a failure to complete the work.

7. WORK AND LABOR — CONTRACTS — BUILDING CONTRACTS — SUBSTANTIAL PERFORMANCE — LIABILITY OF OWNER.

A contractor, though not doing the work in exact accordance with the contract, may recover what the work is reasonably worth to the owner, not exceeding the contract price.

8. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS — TAX BILLS — ACTIONS.

A city charter providing that, in an action on tax bills, defendant may plead and prove in reduction that the work was not done in a workmanlike manner according to the contract, etc., though applying on its face only to actions on tax bills, applies when the owner takes the initiative and brings a suit in equity to cancel a tax bill, and either tenders or offers in his bill to pay the actual value of the work done.

9. SAME.

An owner, whose property has been assessed for the construction of a sewer, cannot maintain a suit to cancel tax bills issued therefor pursuant to the city charter authorizing the issuance of tax bills on the completion of the work, and declaring that, in an action on tax bills, defendant may plead and prove a noncompliance with the contract on tendering the value of the work done, on proof that the contractor, though substantially complying with the contract, did not perform all the work in a workmanlike manner, and omitted certain work by order of the city engineer.

10. SAME.

The levying of special assessments is an exercise of the taxing power.

11. TAXATION — COLLECTION OF TAX — INJUNCTION — CONDITION PRECEDENT.

Equity will not enjoin the collection of a tax because it is excessive, unless plaintiff tenders the amount actually due.

Appeal from Circuit Court, Jackson County; W. B. Teasdale, Judge.

Action by J. L. Porter against the R. J. Boyd Paving & Construction Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Ball & Ryland, for appellant. William R. James, for respondent.

GANTT, J.

This is an action in equity against the defendants, as owners and holders of certain tax bills issued against the appellant's property, some 83 lots in J. L. Porter's second subdivision and addition to Kansas City, by which it is sought to have said bills canceled by the decree of the court, and the apparent lieu of said tax bills removed from the title to said lots. The defendant construction company had let to it a contract for the construction of a sewer in sewer district No. 227, which was confirmed by an ordinance of the council of Kansas City on the 13th of May, 1901, and proceeded with the execution of the work provided for in said contract, and the ordinance under which it was let and claimed to have completed the same in accordance with its said contract on the 14th of September, 1901. On which date the city issued and delivered to the company the tax bills, which are the subject of complaint, and thereupon the plaintiff brought this action for the cancellation of said bills against the said property on September 10, 1902. The grounds as set forth in the petition on which the said bills are assailed were: First, that the ordinance No. 16,521, which provided for the construction of the sewer and the letting of the contract for that purpose, and No. 16,915, confirming the contract with the defendant company, were not enacted pursuant to the charter provisions in that behalf, in that, while purporting to have received the signature and approval of the mayor of the city, they in fact had not been signed by the mayor, but were signed and approved by his private secretary. Second. That the notice of the letting of the contract was not published 10 successive days within the 20 days next preceding the time for opening the bids, in that said publication was omitted from the newspapers during the period of publication on the 7th and 14th of April, which were Sundays. Third. That the defendant company never completed the construction of said sewer prior to the issuance of the bills in question, and such completion of said work has never been done, and the particulars in which it is claimed that the contractor failed in completing the sewer are as follows: "(a) That the contract required the construction of seventeen (17) catch-basins, and the contractor only constructed thirteen (13). (b) That the contract provided that where any part of the sewer was to be built on or above the surface, and any other foundation is required than embankment, such construction and sewer built thereon shall be covered with an earth embankment carried to a height of not less than one foot above the top of the sewer, and the top width of such embankment shall not be less than the greatest external diameter of the sewer, and that the contractor had failed to cover with an embankment, as required, a portion of about 1,000 feet in length of said sewer, which portion was required to be laid on a wall of rubble masonry. Fourth. (a) That said contract provided that the excavation shall be done by open cut from the surface, except where tunneling is expressly permitted or directed by the city engineer, and that no tunneling was in any manner permitted or directed by the city engineer; but notwithstanding the contractor, in all parts of the work which was done in earth excavation, adopted the method of tunneling by alternating a section of tunnel with open excavation, instead of doing said work by open cut from the surface as required; and that, by reason of such manner of doing said work, it was impossible to fill said trenches and tunnels in a compact manner, as required, and the same was not, in fact, done. (b) That, when a trench is in rock formation, the filling required by the contract was that the same be filled with clay to a point two (2) feet above the top of the sewer, provided that the rock from the trench might be used with an equal amount of earth; but no stones of greater dimensions than six (6) inches should be used, and that the filling was required to be rammed and tamped; and that 3,258 feet of said sewer was laid in trenches and excavated through rock, in which the contractor did not use earth or clay, as required, but, on the contrary, the rock taken from the trench was dumped into the trench as filling material. (c) That said contract further provided that all surplus materials from the trenches should be hauled away to such places within a distance of six hundred (600) feet as might be designated by the engineer, and deposited according to his directions; and, if no such place was designated, the contractor should be bound to remove the surplus at his own risk and cost, and said contractor in violation of said requirement, failed to remove the surplus material, but left large quantities thereof dumped upon plaintiff's lands, situated in the neighborhood of said sewer works. (d) That the contractor further failed to complete said contract, in this: That...