Appeal from Circuit Court, Jackson County; J. H. Slover, Judge.
Suit by Mary E. Schibel and others against J. W. Merrill and others to cancel tax bills. From a decree for plaintiffs, defendants appeal. Affirmed.
This cause is before this court upon an appeal from a decree by the Jackson county circuit court annulling and setting aside a certain tax bill issued by Kansas City for street improvement. The petition fully stated the case, and the answer clearly indicates the line of defense to this action, and they are here reproduced:
"Plaintiffs, for cause of action, state that the defendant Kansas City is a municipal corporation, and that the defendant James Cowgill is city treasurer of Kansas City, Missouri.
Plaintiffs state: That in 1895, and for a long time prior thereto, and ever since that time, they have been the owners and in possession of lot 1, block 9, Fairmount Park, an addition to Kansas City, Missouri; said property being on West Twenty-Fourth street, between the Southwest Boulevard and Fairmount avenue, in Kansas City, Missouri. That the defendant Kansas City, Missouri, in 1895, passed an ordinance (No. 6558) entitled `An ordinance to macadamize Twenty-Fourth street from Southwest Boulevard to Fairmount avenue,' which ordinance was approved by the mayor of Kansas City July 12, 1895. Said ordinance provided for the macadamizing of Twenty-Fourth street in front of plaintiffs' property. That, in pursuance of said ordinance, Kansas City on the 26th day of July, 1895, entered into a written contract with the Kansas City Macadamizing Company to macadamize said Twenty-Fourth street according to said ordinance. Said contract, among other things, provided that `the work of constructing said macadam pavement shall be commenced within ten days from the time this contract binds and takes effect, and shall be prosecuted regularly and uninterruptedly thereafter (unless the engineer shall specifically direct in writing) with such force as to secure its completion within ninety days from the date of its confirmation; the time of beginning, rate of progress, and time of completion being essential conditions of the contract.' That said city afterwards passed an ordinance (No. 6591) entitled `An ordinance to confirm contract with Kansas City Macadamizing Company for the macadamizing of Twenty-Fourth street from Southwest Boulevard to Fairmount avenue.' That said ordinance was duly approved by the mayor of Kansas City on the 8th day of August, 1895, and went into full force and effect, and approved said contract, and that on and after said 8th day of August, 1895, said contract was in full force and effect, and binding on both parties thereto, and that it was the duty of said contracting company to commence work on said street on or before the 18th day of August, 1895, and to complete the macadamizing of said street on or before the 6th day of November, 1895. Plaintiffs say that said contracting company, to the great injury of plaintiffs, refused and neglected to commence work on said street within ten day after said contract was confirmed and binding, and was in full force and effect, and that said company failed and neglected to complete the macadamizing of said street within ninety days from the confirmation of said contract. Plaintiffs say that the macadamizing of said street was not completed until the 3d day of February, 1896, and long after the expiration of the said ninety days. Plaintiffs say that, by reason of the failure of the said contracting company to complete the macadamizing of said street according to its contract, said company and its assignees lost all rights under said contract for any compensation for the macadamizing of said Twenty-Fourth street. Plaintiffs say that the said contracting company failed to macadamize said street according to the terms of the contract; that it used inferior material to that provided for in the contract, and failed to lay the macadam the thickness called for in said contract, and failed to construct the macadam pavement in the manner provided for by said contract — all to the great loss of the plaintiffs. Plaintiffs say that, by reason of the breach of said contract as above set forth, said contracting company and its assigns lost all rights to compensation for said work under said contract. Plaintiffs say that, notwithstanding that said street was not paved with macadam in the time and manner and with the material provided for by said contract, the defendant Kansas City, and its agents, officers, and servants, though well knowing said company had violated said contract and was not entitled to any tax bill for said work, did, in violation of plaintiffs' rights, on or about the 14th day of February, 1896, issue a tax bill against the plaintiffs' said property for macadamizing said Twenty-Fourth street under said violated contract, amounting to one hundred and ninety-seven dollars and sixty-nine cents. Plaintiffs say that they have a business block on their said lot, and that the constant use of said Twenty-Fourth street by them and their tenants is necessary to the enjoyment and full use of said property, and that by failure of said contracting company to complete the macadamizing of said street within the time agreed to in said contract, and for many months after it should have been completed under the terms of the contract, plaintiffs and their tenants suffered great inconvenience and loss of time and money. Plaintiffs say that the defendant Kansas City keeps a set of books known as the `Special Tax Records,' where all unpaid special taxes are recorded, and the same by law is made a lien on all property covered by said tax bills, and that the said books are in the charge of and under the control of James Cowgill, as city treasurer of Kansas City, and that the defendant Kansas City, in violation of plaintiffs' rights, knowing full well that no tax should have been issued against the plaintiffs' said property for the macadamizing of said Twenty-Fourth street as aforesaid, did, on or about the 14th day of February, 1896, issue a tax bill against plaintiffs' said property for macadamizing said Twenty-Fourth street, to the amount of one hundred and ninety-seven dollars and sixty-nine cents, and caused a record of the same to be made on the special tax record of said city, thereby making and creating a cloud on the title of plaintiffs' said real estate, which cloud prevents plaintiffs from selling, disposing of, or incumbering their said lot. Plaintiffs say that the defendants J. W. Merrill and Duston Adams are the assignees and owners of said tax bill
and the same is under their control and in their possession. Wherefore, the premises considered, the plaintiffs pray the court to decree said tax bill null and void and no lien on plaintiffs' said lot, and that the defendants Kansas City and James Cowgill, as its treasurer, be ordered and compelled to cancel said tax bill from and off the special tax records kept by said city, and that the defendants J. W. Merrill and Duston Adams be ordered to bring said tax bill into court and to surrender the same, that said tax bill may be canceled and the cloud be removed from the title of plaintiffs' property; and that the defendants Merrill and Adams be, and each be, enjoined from selling, disposing of, or parting with the possession of said tax bill. Plaintiffs say that they have no adequate remedy at law, and plaintiffs ask that they may have such other and further relief as to the court may seem meet and just in the premises."
The answer of defendants is as follows:
"Now come the defendants to the above-entitled action, and, for their amended answer to plaintiffs' petition, deny each and every allegation thereof not hereinafter specifically admitted. Defendants admit that plaintiffs are the owners of the property described in plaintiffs' petition, and that the mayor and common council of Kansas City passed an ordinance (No. 6558) entitled `An ordinance to pave Twenty-Fourth (24th) street from Southwest Boulevard to Fairmount avenue,' approved July 12, 1895, which provided for macadamizing Twenty-Fourth (24th) street between the points above named, and in front of the plaintiffs' property. That, in pursuance of said ordinance, Kansas City on the 16th day of July, 1895, entered into a written contract with Kansas City Macadamizing company to pave Twenty-Fourth (24th) street...
