Riley v. City of Rock Port

• Decision Date: 05 October 1942
• Docket Number: No. 20019.,20019.
• Citation: 165 S.W.2d 880
• Parties: RILEY v. CITY OF ROCK PORT.
• Court: Missouri Court of Appeals

165 S.W.2d 880

RILEY v. CITY OF ROCK PORT.

No. 20019.

Kansas City Court of Appeals. Missouri.

October 5, 1942.

Appeal from Circuit Court, Buchanan County; Sam Wilcox, Judge.

Action by M. L. Riley, doing business as Engineering Service Company, against the City of Rock Port, Missouri, for balance due for engineering services wherein defendant filed a counterclaim. From an adverse judgment, defendant appeals.

Judgment on plaintiff's case reversed and judgment on counterclaim affirmed.

Gore & Gore and W. L. Mulvania, all of Rock Port, and Culver, Phillip, Kaufmann & Smith, of St. Joseph, for appellant.

DuVal Smith, of St. Joseph, and Charles M. Miller, of Kansas City, for respondent.

CAVE, Judge.

This case comes to the writer on assignment after motion for rehearing was sustained. Commissioner Boyer prepared the first opinion and much of that opinion will be adopted.

Plaintiff sued to recover an alleged balance due him for engineering services. The cause was tried to the court without the aid of a jury. In due time, judgment was rendered for the plaintiff on his petition and also for plaintiff on defendant's counterclaim. Appeal to this court was duly perfected. In his original brief, respondent requested an affirmance of the judgment on the ground that the assignment of errors and the points and authorities in appellant's brief were not sufficiently specific to raise any question for review. Since the motion for rehearing was sustained, appellant has filed an additional brief which clearly complies with our rules. This it had the right to do; Ward v. Western Union Telegraph Co., 226 Mo.App. 752, 46 S.W.2d 268. Respondent's motion is denied.

The petition is based upon a written contract signed by one Joseph B. Ryan on behalf of Engineering Service Company, and by the Mayor on behalf of the city, pursuant to a resolution adopted by the Board of Aldermen of said city on February 1, 1937. The adoption of the resolution referred to authorizing the contract is admitted, and defendant further admits the execution of the written contract of February 1, in pursuance thereof. The pertinent part of the resolution is "That `Mayor be authorized to enter into contract with Engineering Service Company, to make a survey of needs of town electrically, prepare complete survey, detailed plans, etc., as per copy to be attached to these minutes.'"

The contract executed pursuant to the above resolution is as follows:

"Contract for Engineering Services

"This contract, made and executed in duplicate this First day of February, 1937, by and between the City of Rock Port, Missouri, a municipal corporation, hereinafter called the city, party of the first part, and Engineering Service Company, Consulting Engineers of Kansas City, Missouri, hereinafter called the Engineers, party of the second part.

"Witnesseth: That in consideration of the mutual covenants herein contained, the city hereby agrees to employ the engineers to perform the services hereinafter mentioned, and agrees to pay them for such services according to the schedule of fees herein contained. The services which the engineers hereby agree to perform are as follows:

"Section A. The services, which the engineers agree to perform are as follows:

"1. To make all necessary field investigations and to collect all necessary data in making a survey and preparing a report on the operation and estimates of costs of a municipal electric plant to serve all consumers within the city.

"2. To prepare a report and deliver five copies of said report to the city council; the report to include the following information:

"a. Estimated revenue derived from serving 100 per cent of consumers within the city.

"b. Estimates of cost of a modern electric Diesel generating plant, sufficient in capacity to care for the peak load of the city.

"c. Estimates of cost of construction of a modern electric distribution system for serving all consumers.

"d. Estimates of cost of operation of the power plant.

"e. Estimates of cost of operation of the distribution system.

"f. Estimates of spread tables giving the consumption of electric energy for one year and covering the various classes of consumers.

"g. Estimated rate structure necessary to provide sufficient revenue to meet all operating and fixed charges of the generating plant and distribution system under municipal operation.

"Section B. The services, which the engineers agree to perform are as follows:

"To prepare detailed plans and specifications covering the installation of an electrical distribution system for serving all customers.

"Section C. The services, which the engineers agree to perform are as follows:

"To prepare detailed plans and specifications covering the installation of a power house and equipment.

"Section D. The services, which the engineers agree to perform are as follows:

"To consult with and advise the Mayor in carrying out of contracts; having an engineer present at the letting of the contract, and providing that three inspections be made by the engineers during the period of construction. These inspections to be made at the request of the Mayor of the city.

"Section E.

"1. For the services as outlined in Section A of this contract, the city agrees to pay the engineers the sum of four hundred dollars ($400.00) due and payable on delivery of the report to the city.

"2. For the services as outlined in section B and C of this contract, the city agrees to pay the engineers, a sum equal to five (5%) per cent of the estimated cost as prepared by the engineers. The fee being due and payable on completion of specifications and plans.

"3. For the services as outlined in Section D of this contract, the city agrees to pay the engineers, the sum of one hundred dollars ($100.00) on completion of construction and final acceptance of the project by the city.

"Section F. It is further agreed that in the event the engineers are not given access to the records of the present company now serving the consumers of the city, that the city will furnish without cost to the engineers the services of one competent man from the city's personnel to collect information from the consumers within the city regarding consumer consumption and revenue derived therefrom. The services so rendered are not to exceed one month period of time for the man.

"In witness whereof, the parties of the first and second parts have hereunto set their hands and seals on the date first above written.

                    "(Seal)                     (Signatures)"
                

In addition to services called for in the foregoing contract, plaintiff alleges the rendition of further services in the preparation of plans and specifications for an ice plant together with the power plant, all of which was alleged to have been done under authority granted by the city in purported resolutions authorizing the mayor to make application to the United States for a grant to aid in financing the construction of a power and ice plant and distribution system, and pleads an alleged resolution authorizing and directing the Engineering Service Company to furnish such information as the United States through the Federal Emergency Administration of Public Works may reasonably request in connection with the application. The amount sought to be recovered is the balance alleged to be due for all of the services rendered by plaintiff covering not only a power plant and distributing system, but also for services in connection with a proposed ice plant.

The answer pleads payment to the Engineering Service Company for all services called for in the contract upon an agreed settlement in reference thereto. The answer further specifically denies that the city at any time entered into a contract with the Engineering Service Company for plans, specifications and estimates for the construction of an ice plant, and denies that the contract set out in the petition embraces plans for an ice plant, and denies that it is indebted to the plaintiff in any sum on said account, and is without legal authority to pay same.

The answer further pleads a counterclaim based on an alleged overpayment under the terms of the contract, and also based on gross negligence of the Engineering Service Company and its agents in drawing plans and specifications called for in the contract, causing a large amount of extra expense, delay in construction, installation and operation of its power plant and distributing system. The alleged overpayment under the terms of the contract is claimed to be $1,439.62, and damages on account of negligence in the sum of $2,000.

The reply denied all new matter set up in the answer and counterclaim.

At the conclusion of the evidence, at the request of plaintiff and over the objection and exception of defendant, the court sustained motions for a finding and judgment in plaintiff's favor, both upon the petition and on the counterclaim, and made findings of law as follows:

"No. 1. Finding of law. The court finds and declares as a matter of law that Section 2962, Revised Statutes of Missouri, 1929, does not apply to the services of plaintiff in question, or to professional services rendered in a technical, advisory and purely ministerial capacity.

"No. 2. Finding of law. The court finds that under the resolution of the Board of Aldermen, at a regular meeting thereof, duly passed February 1, 1937, the Mayor of the City of Rock Port, on behalf of said city, was duly authorized to enter into the written contract with plaintiff, offered in evidence, and did so on February 1, 1937.

"No. 3. Comes now plaintiff at the close of all the evidence and moves the court, upon the pleadings and evidence heretofore introduced to enter finding and judgment in favor of the plaintiff, and against the defendant.

"No. 4. Comes now plaintiff at the close of all the evidence and moves the court, upon the pleadings and evidence, to render a finding, and judgment in favor of plaintiff and against defendant, upon defendant...