Snouffer v. City of Tipton

• Decision Date: 07 June 1913
• Citation: 161 Iowa 223,142 N.W. 97
• Parties: SNOUFFER & FORD v. CITY OF TIPTON ET AL.
• Court: Iowa Supreme Court

161 Iowa 223

142 N.W. 97

SNOUFFER & FORD

v.CITY OF TIPTON ET AL.^d1

Supreme Court of Iowa.

June 7, 1913.

Appeal from District Court, Cedar County; F. O. Ellison, Judge.

Suit in equity, to enjoin the defendants, the City of Tipton, the County of Cedar, and the officers of each, including the County Attorney, City Solicitor, the County Sheriff, and certain private citizens, from prosecuting, either civilly or criminally, or from interfering in any way with plaintiff, its agents or employés, in removing a certain pavement and gutter and paving and guttering material, laid in the streets of the defendant city by the plaintiffs herein. A temporary writ of injunction issued as prayed, which upon motion was afterwards dissolved; and certain of the defendants filed demurrers to the original petition, and an amendment thereto, and these demurrers were also sustained, and plaintiffs' petition was dismissed. Plaintiffs appeal. Affirmed in part, and reversed in part.

Weaver, C. J., dissenting.Redmond & Stewart, of Cedar Rapids, and R. R. Leach, of Tipton, for appellants.

C. O. Boling and France & Rowell, all of Tipton, for appellees.

DEEMER, J.

This seems to be the last case of a series which have come to this court, involving the construction of a curb and gutter and a certain pavement in the city of Tipton. The first of these cases involved the question as to whether or not the improvement was completed according to contract, and the right of the city to issue assessment certificates to the contractor on account thereof. This court held that the work had not been completed according to contract, and that abutting property should not be assessed with the cost thereof. See Wingert v. City of Tipton, 134 Iowa, 97, 108 N. W. 1035, 111 N. W. 432. It should be remarked parenthetically that plaintiff reported the work as completed some time in October of the year 1903. Failing to secure its assessment certificates, plaintiff brought a suit in which they sought to have a lien established against property abutting upon the streets which had been paved, to the amount of the value of such improvement, and in this they failed. See Snouffer & Ford v. Grove et al., 139 Iowa, 466, 116 N. W. 1056. They then commenced an action on the quantum meruit against the city and others, and, as part of the relief prayed, asked that a lien be established against the improvement for the value thereof, and this action also failed. See Snouffer & Ford v. City of Tipton, 150 Iowa, 73, 129 N. W. 345, Ann. Cas. 1912D, 414. In each and all of these cases plaintiffs asserted that they had performed the work according to contract. In one of them, plaintiffs averred that they had offered to reconstruct the pavement to make it comply with the terms of the contract, but in that it was held that the offer came too late. The result has been that the plaintiffs have received nothing for the improvement constructed by them, and this improvement has remained in the city streets since it was originally constructed; neither the plaintiff nor the city doing anything toward remedying the defects, which, this court held, existed therein.

The facts with reference to this prior litigation, the pleadings, decrees, and records of the testimony taken therein are set out in the petition filed in this case, and, in addition thereto, plaintiff, among other things, alleged:

“Par. 6. That the contract by its terms provided that reconstruction of the work might take place at any time before it was paid for, and provided also that the defendant city might reconstruct and charge back the expense thereof to the plaintiff, and the city council itself, by resolution, after the commencement of said action, deferred further consideration of assessment and payment for said work by the adoption and approval of the following record: ‘The matter of the assessment of paving under the Snouffer & Ford contract and the issuance of certificates against abutting property therefor was deferred pending the hearing and decision upon the injunction restraining the city council from assessing said paving or the issuing of certificates, issued in the case of F. D. Wingert and others v. City of Tipton et al., by district court of this county, until such time as said injunction is dissolved or finally heard and then the matter of the assessment of said paving and issuing of certificates shall be taken up at the first regular meeting after the dissolution or disposition of said injunction or on a specially called meeting therefor.’ That at the next regular meeting of the city council of the defendant city, held after the announcement of the opinion of the Supreme Court in the case of Wingert v. City of Tipton, held on October 1, 1906, and at the following regular meeting thereof in the same year, the plaintiff in this case offered both orally and in writing to reconstruct the pavement up to the strict requirements of the contract, but the city council ignored the offer and did nothing. This plaintiff, under the contract aforesaid, as according to its terms and under the construction thereof theretofore adopted by both this plaintiff and said city, could do nothing toward reconstruction of said pavement without inspection, supervision, direction, and co-operation of the defendant city and its officers. This offer to reconstruct was made after the filing of said opinion, but before any decree of injunction or other remedy had been rendered or entered in the Supreme Court in said cause, which decree was in fact entered on the 12th day of December, 1906.

“Par. 7. Thereafter, the plaintiff sought to recover on quantum meruit from some of the abutting property owners on said portions of Meridian and Fourth streets, and also sought to recover so much as said pavement was worth from the city, but was defeated in both of said forms of action.

“Par. 8. Thereafter, the plaintiff caused to be served by the sheriff of Cedar county, Iowa, on each member of the city council of the defendant city of Tipton, and mayor thereof,” a notice in writing to the effect that, in view of the failure of the city to accept and pay for the pavement or to allow plaintiff to reconstruct or remedy the defects therein, it would, with as little disturbance to public travel and convenience as possible, and without disturbing the grade or the parking, proceed on the 8th day of May, 1911, to remove the pavement and curbing from the streets. It also averred that: “At the first regular meeting of said council in May, 1911, it read the said notice to said council in session, by and through its attorney, R. R. Leech; and the plaintiff, prior to the service of said notice, orally notified the said mayor and said councilmen that it would take up and remove said pavement and curbing, and expeditiously, and not to interfere thereby with travel upon the streets, and would leave said streets upon which paving had been laid by it as aforesaid in as good or better condition than they were before Snouffer & Ford began the work of putting down said pavement, and that all of the same could be done without material injury to said streets. That in truth and in fact said removal of said paving and curbing can be accomplished without material inconvenience to the use of said streets and without material injury to the streets themselves, and the removal will leave said streets in substantially as good condition, or better, than they were before the pavement and curbing aforesaid was placed thereon.

“Par. 9. That pursuant to said notices, the plaintiff and its employés commenced on the 8th day of May, 1911, to remove the said pavement and curbing, but the defendant city, acting through its officers and agents for and on behalf of said city, and some of the property owners made defendants herein who owned property abutting on said paved and curbed streets, arrested the men engaged in said removal for a violation of section 4703 of the Code of Iowa; and again, on or about May 23, 1911, when said work of removing was resumed, repeated said arrest, and again threaten to arrest the plaintiff or any of its employés who may attempt to or start upon said removal, and in this manner and ways the defendant city of Tipton and some of the other defendants, the plaintiff cannot specify them, through the officers and agents of said defendant city and the county of Cedar, refuse to permit the plaintiff to remove said paving and curbing as proposed, and have interfered with and threaten to interfere with and prevent said removal of said paving and curbing by the plaintiff and its employés.

Par. 10. That the defendants and none of them have paid anything for said pavement and curbing. That said pavement and curbing is the property of plaintiff. That the defendants have failed and refused to accept said pavement and curbing as in compliance with the contract aforesaid, and have failed and refused to reconstruct the pavement and curbing to comply with the terms of said contract and charge the expense thereof to the plaintiff as said contract provides they might do; and on the proposal and offer of the plaintiff, as under the terms of said contract it might before final payment for said pavement and curbing, to reconstruct said pavement to the full requirements of said contract and asking the supervision and approval of said reconstruction by the officers of said city, as plaintiff was bound to do, the defendant city and its officers refuse and neglect to do anything or to permit said reconstruction, and all defendants have failed and refused to pay anything for said pavement and curbing, and refuse to permit, and prevent the taking up and removal of the same and it is their expressed purpose and intention so to do.

Par. 11. The plaintiff has no plain, speedy, or adequate remedy at law, and will suffer irreparable injury if delayed in the taking up of said pavement and curbing and will be harassed and annoyed by a multiplicity of suits, criminal and civil,...