Sparks v. The Villa Rosa Land Company
| Decision Date | 27 April 1903 |
| Citation | 74 S.W. 120,99 Mo.App. 489 |
| Parties | J. H. SPARKS, Appellant, v. THE VILLA ROSA LAND COMPANY, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Buchanan Circuit Court.--Hon. W. K. James, Judge.
REVERSED AND REMANDED.
Reversed and remanded.
Graham & Fulkerson for appellant.
(1) Hodges' contract especially provided that he should proceed with his work under the direction of the city engineer and that he should be entitled to an extension of his time in case he was hindered or delayed. The trial court refused to give plaintiff the benefit of said sections of his contract, which was error. Whittemore v. Sills, 76 Mo.App. 248. (2) At most the only penalty that could have been imposed on Hodges for his failure to complete contract within time specified--provided the delay had been caused by his own negligence--was that which the contract itself inflicted, to-wit, a forfeit of five dollars per day for every day the contract was delayed. Heman v Gilliam, 71 S.W. 163. (3) The court erred in refusing instruction 2, requested by plaintiff. Ordinance No. 2503 extended contractor's time for thirty days and within said time as extended the work of his contract was completed. Elliott on Roads and Streets, sec. 585; Jenkins v Stetler, 20 N.E. 789, 118 Ind. 275; Terre Haute & L R. Co. v. Nelson, 27 N.E. 486, 130 Ind. 258; Rose v. Trestrail, 62 Mo.App. 352; Neil v. Gates, 157 Mo. 596; Whittemore v. Sill, 76 Mo.App. 248. (4) Defendant petitioned for the very work it got. Had it not petitioned therefor the work would not and could not have been ordered by the city under the law as it existed at that time, 1899. Defendant prevented Hodges from completing his contract within the forty days' time prescribed, by reason of its failure to move its buildings. The president of the defendant company knew all about the condition of the street and of defendant's buildings. Knowledge of the president of a corporation is knowledge of the corporation. Latimer v. Inv. Co., 78 Mo.App. 463; Stone Cutter v. Myers, 64 Mo.App. 527; Withers v. Bank, 67 Mo.App. 115; Palmyra v. Morton, 25 Mo. 596; Justice v. Lancaster, 20 Mo.App. 559; Murphy v. Type Foundry, 29 Mo.App. 541; Railroad v. Farrel, 76 Mo. 183; Gibson v. Owens, 115 Mo. 259; Jenkins v. Stetler, 20 N.E. 788, 118 Ind. 275; Ross v. Stackhouse, 16 N. E. (Ind.) 501; Clements v. Lee, 16 N. E. (Ind.) 799; Stewart v. Commissioners, 26 P. 683.
J. F. Woodson for respondent.
(1) Where time is the essence of the contract, as in this case, the failure to complete the work in time invalidates the taxbills. McQuiddy v. Brannock, 70 Mo.App. 535; Neill v. Gates, 152 Mo. 585. This is true although the time limit is contained in the contract and ordinance. Ayers v. Schmol, 86 Mo.App. 349; Shoenberg v. Heyer, 91 Mo.App. 390. Where the ordinance refers to the contract and specifications on file with the city engineer, such contract and specifications thereby become a part of said ordinance. Galbreath v. Newton, 30 Mo.App. 392; Gallagher v. Smith, 55 Mo.App. 116-119; Roth v. Hax, 68 Mo.App. 287; Paving Co. v. Uhlman, 137 Mo. 571. (2) The failure of the city to construct a culvert at the intersection of Twenty-seventh and Messanie streets was no excuse for the failure of the contractor to complete the contract in time, when he has not contracted against such a contingency. McQuiddy v. Brannock, 70 Mo.App. 635; Rose v. Trestrial, 62 Mo.App. 358. (3) The protrusion of certain sheds on to Messanie street would not excuse the contractor for failing to complete his contract in the time specified therein, because; (a) He did not contract against such a contingency. (b) It took him nearly as long, according to his testimony, to grade the space covered by the sheds after they were removed as he had contracted to grade the entire six blocks in. This would be unreasonable. (4) The contractor, under the terms of the contract, conceding their contention, was not entitled to any extension of time unless the city engineer should have "immediate notice in writing of the cause of the detention." No such notice in writing was alleged or proved.
--This action is based upon certain taxbills issued to W. C. Hodges, a contractor and plaintiff's assignor, as payment for grading Messanie street in the city of St. Joseph, Missouri. The defendant refused to pay the bills, which, at the time of trial, amounted to $ 1,700. The object of this suit is to enforce the lien of said bills on the defendant's property. The defendant's answer set out that the contractor had failed to complete the work within the forty days limit prescribed in his contract with the city. To this answer, plaintiff replied alleging that the contractor was hindered and delayed in the completion of the work in the time so limited by said contract on account of defendant's failure to remove certain of its buildings from the street wherein the work was being carried on, and on account of the failure of the city to complete certain work in said street in time for the contractor to finish his work within the said forty days limit. And he further sets up certain facts by way of estoppel against defendant.
The ordinance providing for the work did not prescribe any time, in terms, in which the work should be completed. The contract for the work was dated and approved by the city council on the 28th day of August, 1898. It provided for a full completion of the work within forty days after its approval by the city council, it being provided therein that "the time of beginning, rate of progress, and time of completion being essential conditions of this contract; and if the contractor shall fail to complete the work by the time above specified, the sum of five dollars per day for each and every day thereafter until such completion, shall be deducted from the moneys or amounts to be certified under this contract." Section 10 of the contract is as follows: "The first party shall not be entitled to any claim for damages for any hindrance or delay from any cause whatever in the progress of the work or any portion thereof; but such hindrance may entitle said first party to an extension of the time for the completion of this contract sufficient to compensate for the detention, the same to be determined by the city engineer, provided he shall have immediate notice in writing of the cause of detention." The contractor did not complete the work until about the 7th day of November, more than forty days from the date of approval of the contract by the city council. On October 11th, the city council, by ordinance, extended the time for doing the work for a period of thirty days. This was, however, after the expiration of the original time limit of forty days.
It was shown that during the time when the work was in progress the defendant's barns, three hundred and eighty feet in length and ten feet in width, situated on the street to be graded, delayed the work to some extent; and that the construction of a culvert across said street also delayed the progress of the work, as well as the delay of the city engineer in setting stakes to indicate the manner in which the grading was to be performed.
The cause was submitted to the court. The finding and judgment were for the defendant, from which plaintiff appealed. The plaintiff asked a number of instructions all of which were refused except those numbered three and four. No...
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