Sparks v. Villa Rosa Land Co.

• Citation: 99 Mo. App. 489,74 S.W. 120
• Parties: SPARKS v. VILLA ROSA LAND CO.
• Decision Date: 27 April 1903
• Court: Court of Appeal of Missouri (US)

74 S.W. 120

99 Mo. App. 489

SPARKS v. VILLA ROSA LAND CO.

Court of Appeals at Kansas City, Missouri.

April 27, 1903.

MUNICIPAL CORPORATIONS—GRADING STREET —TAX BILLS—DELAY IN WORK—CONSTRUCTION OF CONTRACT—EXTENSION OF TIME.

1. An ordinance providing for the grading of a street did not prescribe any time in which the work should be completed, but the contract did so, and provided that the contractor should not be entitled to claim damages for any hindrance, but such hindrance might entitle him to an extension sufficient to compensate him for the detention, "the same to be determined by the city engineer." Held, in an action on tax bills, that recovery was not precluded by a delay in completing the work beyond the period fixed, caused by the city's construction of a culvert

across the street and by the presence of defendant's buildings therein; since, though the city engineer could not be given power to determine what extension should be granted, that did not destroy the right itself.

2. In an action on tax bills for grading a street, the burden is on the plaintiff to show that the work was completed in a reasonable time.

3. Where, in a suit on tax bills for grading a street, it appears that the work was delayed by the city's construction of a culvert across the street and other causes, the refusal to instruct that the delay from the culvert was an excuse for failure to complete the work in the time specified is not cured by a similar instruction as to the other causes.

4. An ordinance for grading a city street did not prescribe a time within which the work should be done; but the contract fixed a time for completion, which it provided should be an essential condition, and, if the contractor failed to complete the work as specified, $5 per day for each day over were to be deducted from the amount to be certified under the contract. Held, that the contractor was merely required to complete the work within a reasonable time.

5. The question whether a contract for grading a street has been performed within a reasonable time is one of fact.

6. Where, under an ordinance and contract for grading a city street, the contractor is in effect given a reasonable time to complete the work, though a certain period is named, the question whether an extension of time, granted by ordinance after the named period had expired, was valid as against an abutting owner, is one of fact; since what is a reasonable time is itself a question of fact.

Appeal from Circuit Court, Buchanan County; W. K. James, Judge.

Action by J. H. Sparks against the Villa Rosa Land Company. Judgment for defendant, and plaintiff appeals. Reversed.

Graham & Fulkerson, for appellant. J. F. Woodson and Willard P. Hall, for respondent.

BROADDUS, J.

This action is based upon certain tax bills issued to W. C. Hodges, a contractor and plaintiff's assignor, as payment for grading Messanie street, in the city of St. Joseph, Mo. 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 40-day 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 40-day 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 40 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...