State ex rel. Stifel v. Flad

• Decision Date: 31 May 1887
• Citation: 26 Mo.App. 500
• Parties: THE STATE EX REL. P. F. STIFEL v. HENRY FLAD, PRESIDENT, ETC., Respondent.
• Court: Missouri Court of Appeals

26 Mo.App. 500

THE STATE EX REL. P. F. STIFEL v. HENRY FLAD, PRESIDENT, ETC., Respondent.

Court of Appeals of Missouri, St. Louis.

May 31, 1887

PROCEEDING by mandamus.

Writ denied.

GEORGE A. CASTLEMAN, for the relator.

LEVERETT BELL, for the respondent.

OPINION

ROMBAUER J.

Upon the suggestion of the relator, an alternative writ was issued, commanding the respondent to show cause for his failure to issue certain special tax bills to the relator which the latter claims it is the duty of the respondent to issue to him under a provision of an ordinance of the city and of a contract entered into between the city of St. Louis and the relator.

The respondent demurs to the writ on the ground that it does not state facts sufficient to entitle the relator to the relief prayed for.

There is a clerical error in the writ, which purports to be, in its descriptive part, a copy of the relator's petition, in this, that the word, " " amounts," is substituted for the word, " moneys; " but as this error corrects itself by papers on file and forming part of the record, in disposing of the demurrer we will disregard the error, and treat the writ in that respect as if its allegations corresponded with those of the petition.

The writ states, and the demurrer admits, the following facts:

The city of St. Louis passed an ordinance to grade and pave a certain alley. By the terms of the ordinance, the grading was to be paid for by the city, out of a fund appropriated for that purpose, and the paving by special tax bills, issued by the respondent as representative of the city, against the lots abutting on the alley. Thereafter, the relator entered into a contract with the city of St. Louis for doing the whole work, which contract, among other things, provided that the work should be completed within one month after it was commenced; that the grading should be paid for by the city at the discretion of the street commissioner, by city warrants upon the fund set apart for that purpose, while the work progressed, and the paving should be paid for upon completion of the work by the special tax bills hereinabove mentioned.

The contract further provided that if the contractor (the relator herein) should fail to complete the work within the specified time of one month, the sum of five dollars per day for each and every day thereafter, until such completion, should be deducted from the moneys payable under said contract. The contractor did not complete the work until twenty-three days after the expiration of the month, and thereby incurred a forfeiture of one hundred and fifteen dollars, which amount under the well settled law applying to cases of this character, was not in the nature of a penalty, but in the nature of liquidated damages. The grading amounted to $144.25, and that amount the relator admits was fully paid to him by the city. The paving amounted, in the aggregate, to $626.84. For this work the respondent has made out and tendered to the relator, special tax bills amounting, in the aggregate, to $511.84, being for the aggregate contract value of the paving, after deducting therefrom the one hundred and fifteen dollars forfeited by the relator as liquidated damages. These bills, the relator refused to accept, claiming...