Schibel v. Merrill

• Decision Date: 24 December 1904
• Parties: SCHIBEL et al. v. MERRILL et al., Appellants
• Court: Missouri Supreme Court

83 S.W. 1069

185 Mo. 534

SCHIBEL et al. v. MERRILL et al., Appellants

Supreme Court of Missouri, Second Division

December 24, 1904

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Clarence S. Palmer for appellants.

The work in this case was completed within a reasonable time after the contract was confirmed, and the taxbill is valid. The decision of the trial court in this case was made in accordance with Ayers v. Schmohl, 86 Mo.App. 349. That case has been considered in Heman v. Gilliam, 171 Mo. 258. The provision regarding the time of completion of the work is practically the same as this case. The court tried the case upon the theory that if the time overran the time specified in the contract, that is, ninety days, then the taxbill was void. That doctrine is overruled by the case last cited. Also, by the case of Heman Construction Co v. Loevy, 78 S.W. 618. The same doctrine has been applied in both Courts of Appeals. Hilgert v. Barber Asphalt Co., 81 S.W. 500; Spark v. Villa Rosa Land Co., 99 Mo.App. 409; Hill-O'Meara Construction Co. v. Hutchinson, 100 Mo.App. 294. The great weight of evidence in this case showed that the work was, so far as substantial use of the street was concerned, practically done at the time of the completion of the contract. The undisputed evidence was that the city had agreed to furnish a heavy steam roller to the contractor and had failed to do so, thus delaying the work of the contractors, but the declaration of law asked by respondents, and which was given, clearly indicates that the theory upon which the trial court tried the case was that the contract fixed definitely the time of completion. This construction of the contract, which we submit was only possible by striking out a part of it, has been held erroneous by this court. It was evident that the case was tried upon the wrong theory, and it should be reversed. In view of the allegations of the pleadings, and of the facts shown in evidence, the case should be reversed with instructions to dismiss respondents' suit in equity and with instructions to the circuit court to enter judgment in favor of appellants upon the taxbill in question.

Noyes Heath & Walls for respondents.

(1) In the following cases, it has been held that, if the work was not completed within the time specified, the taxbills are void: Rose v. Trestrail, 62 Mo.App. 352; McQuiddy v. Brannock, 70 Mo.App. 535; Whittemore v. Sills, 76 Mo.App. 248; Safe Deposit & Trust Co v. James, 77 Mo.App. 616; Springfield to use v. Davis, 80 Mo.App. 574; Richter v. Merrill, 84 Mo.App. 150; Ayers v. Schmohl, 86 Mo.App. 349; Winfrey v. Linger, 89 Mo.App. 159; Shoenberg v. Heyer, 91 Mo.App. 389; Childers v. Holmes, 95 Mo.App. 154; Neill v. Gates, 152 Mo.App. 585; Barber Asphalt Co. v. Ridge, 169 Mo. 376. Appellants want a distinction made where the time in which the work is to be done is specified in the contract and not in the ordinance. There is no good reason why such a distinction should be made. (2) "Proceedings to compel the citizen to pay for improvements in front of his property are proceedings in invitum, purely statutory, and therefore to be strictly construed." Leach v. Cargill, 60 Mo. 317; Cole v. Skrainka, 37 Mo.App. 436; Fruin-Bambrick v. Geist, 37 Mo.App. 512.

FOX, J. Gantt, P. J., concurs; Burgess, J., absent.

OPINION

FOX, J.

This cause is before this court upon an appeal from a decree by the Jackson county circuit court, annulling and setting aside a certain taxbill 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.

The petition is:

"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 one, block nine, 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; that the defendant Kansas City 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 plaintiff's 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. 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 days 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 3rd 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 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 taxbill for said work, did, in violation of plaintiffs' rights, on or about the 14th day of February, 1896, issue a taxbill 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 taxbills, 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 taxbill against plaintiff's 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 taxbill, and the same is under...