Spalding v. Forsee

• Decision Date: 28 November 1904
• Parties: SPALDING v. FORSEE.
• Court: Missouri Court of Appeals

83 S.W. 540

109 Mo. App. 675

SPALDING v. FORSEE.

Kansas City Court of Appeals. Missouri.

November 28, 1904.

MUNICIPAL CORPORATIONS — PUBLIC WORK — EXTENSION OF TIME — TAX BILLS — VALIDITY.

1. Where the charter of a city provides that public work shall be let by competitive bidding, and street paving is done under a city ordinance, the specifications adopted in which and the contract for the work provide that the work shall be done within 60 days and that time shall be of the essence of the contract, the city cannot validate a tax bill therefor by extending the time stipulated for the completion of the work after the contract has been let.

Appeal from Circuit Court, Buchanan County; A. M. Woodson, Judge.

Action by Elliott Spalding against Zeilda Forsee. From a judgment for plaintiff, defendant appeals. Reversed.

James F. Pitt, for appellant. C. F. Strop and P. L. Hudgens, for respondent.

ELLISON, J.

This action is based on a special tax bill issued for street paving in the city of St. Joseph. The judgment in the trial court was for the plaintiff, who is assignee of the bill.

It was provided in the ordinance (or in specifications therein adopted, which is the same thing) that the work should be done within 60 days and that time should be of the essence of the contract; and it was so provided in the contract itself. There was no other provision on that subject. The case falls directly under our decision in Smith v. City of Westport, 79 S. W. 725, where it is shown in an opinion by Judge Broaddus that the city cannot validate a tax bill after the contract has been let by extending the time stipulated for the completion of the work. The charter requires that public work should be let by public competitive bidding. When a contract limiting the time within which work must be done is competed for by bidders and is awarded to the lowest one, the bids are made in view of the time within which the work must be finished. Time is a material and important matter to consider in fixing the cost to be charged for the work. Wickwire v. Elkhart, 144 Ind. 305, 43 N. E. 216; Kneeland v. Furlong, 20 Wis. 437. If this time may be extended, through favoritism or otherwise, it is manifest that there can be no certainty of a public letting by fair competition. To allow the power to extend the time indefinitely, after bids have been advertised for and received on the basis of a fixed time, would open the door to hurtful temptation, favoritism, and fraud.

If it be...