State ex rel. Tonnar v. Bland

• Decision Date: 05 March 1930
• Docket Number: 29863
• Citation: 25 S.W.2d 462,324 Mo. 987
• Parties: The State ex rel. M. B. Tonnar v. Ewing C. Bland et al., Judges of Kansas City Court of Appeals
• Court: Missouri Supreme Court

25 S.W.2d 462

324 Mo. 987

The State ex rel. M. B. Tonnar v. Ewing C. Bland et al., Judges of Kansas City Court of Appeals

No. 29863

Supreme Court of Missouri

March 5, 1930

Opinion and record quashed.

Franken & Timmons for relators.

(1) If the general principles of law announced by the Court of Appeals are contrary to general principles laid down by this court, then the judgment should be quashed. State ex rel Roberts v. Trimble, 316 Mo. 365; State ex rel. v Reynolds, 287 Mo. 710; State ex rel. v Reynolds, 214 S.W. 122; State ex rel. v. Reynolds, 287 Mo. 174. (2) The holding of the Court of Appeals that, since defendant knew of the changes in the plans and specifications and saw them made without protest, he could not go into equity and ask cancellation of the tax bill because of such changes, is contrary to the holding of this court in: Commerce Trust Co. v. Keck, 283 Mo. 209; Wetterau v. Trust Co., 285 Mo. 565; Flinn v. Gillen (Mo.), 10 S.W.2d 928; Exter v. Kramer, 316 Mo. 762. (3) Plaintiff in its reply did not plead estoppel. It was, therefore, out of the case. The Court of Appeals therefore failed to follow controlling decisions of this court in holding that defendant was estopped, because estoppel was not pleaded. The Court of Appeals so held in the first part of its opinion and then in the latter part held that the defendant was estopped anyway. Cases holding that estoppel must be pleaded are numerous. McLain v. Trust Co., 292 Mo. 114; Dairy Co. v. Bank, 315 Mo. 849; Haley v. Sippley, 317 Mo. 505. (4) The holding that even though the changes in the plans and specifications damaged defendant's property, still this did not constitute a defense to an action on the tax bill and did not justify the cancellation thereof, because such changes did not give any advantage to the contractor, or work any fraud on the public, or injure the value or appearance of the work, is contrary to the following decisions of this court holding that where the deviation in the plans and specifications in making public improvements injure abutting property, there is no substantial compliance with the contract, and that the tax bill issued for the work should be cancelled. St. Joseph v. Anthony, 30 Mo. 537; Risley v. St. Louis, 34 Mo. 404; St. Louis v. Clemens, 36 Mo. 468; Sheehan v. Owen, 82 Mo. 457; Cole v. Skrainka, 105 Mo. 303; Steffen v. Fox, 124 Mo. 630; St. Louis v. Ruecking, 232 Mo. 325.

Charles L. Graham for respondents.

(1) In making public improvements a substantial compliance with the law is sufficient, the circumstances in each case determining whether there has been a substantial compliance. A variation from the specifications which does not materially change the character, location, or cost of improvements, or work a fraud on the public, or give an advantage to the contractor, or injure the value or appearance of the property, is not sufficient to justify the cancellation of a tax bill by a court of equity. Mayers v. Woods, 173 Mo.App. 565; Platte City v. Baxter, 141 Mo.App. 175; Porter v. Painting Co., 214 Mo. 20; St. Louis v. Ruecking, 253 Mo. 325; Trimble v. Stewart, 168 Mo.App. 276. (2) A slight deviation of pavement from the center of a street in order to avoid an offset or jog when it crosses another street, which conformed to the existing conditions, held not to justify a cancellation of tax bills. Trimble v. Stewart, 68 Mo.App. 276. (3) The court should be liberal in passing upon the validity of proceeding for street improvements. Barber Asphalt Paving Co. v. Hydraulic Press Brick Co., 170 Mo.App. 503. (4) There are numerous definitions of the phrase "substantial performance" each of which is given in application of the facts of the individual case. One of the most general of these may be found in Manning v. School District, 102 N.W. 356, 364, 124 Wis. 84: "'Substantial performance' means strict performance in all the essentials necessary to the full accomplishment of the purposes for which the thing contracted for was designed." (5) It is the rule in this State that a substantial conformity to the contract is all that is required, and not a literal compliance. Trimble v. Stewart, 168 Mo.App. 276; City v. Paxton, 141 Mo.App. 175; Porter v. Painting Co., 214 Mo. 1; St. Louis v. Ruecking, 232 Mo. 325.

OPINION

Atwood, P. J.

This is a proceeding by certiorari to quash the opinion of the Kansas City Court of Appeals in the case of Town of Carrollton, Missouri, to the use of Hanchett Bond Company, assignee of C. F. Brindle, Respondent, v. M. B. Tonnar, Appellant. The opinion discloses that the action was to establish the lien of a tax bill against property of appellant Tonnar for the paving and curbing of West Heidel Avenue in the Town of Carrollton, Missouri. There was a judgment for plaintiff, who is respondent here, for the amount of the tax bill and interest in the total sum of $ 483.49, and from this judgment defendant appealed.

The suit was brought under the provisions of Section 8738, Revised Statutes 1919, relating to the enforcement of tax bills in cities operating under special charters, Carrollton being of that class. The answer admitted ownership of the property and set up several defenses, the one with which respondents' opinion is concerned being as follows:

". . . . Defendant states that there was no substantial performance of the terms and conditions of the contract for the paving, guttering and curbing of said West Heidel Avenue, and that by reason thereof the tax bill herein sued on is void and should be cancelled and for naught held; that the contractor, C. F. Brindle, failed to build the curb along the south side of West Heidel Avenue and between the east line of South Monroe Street and the west line of South Folger in said town to the height of six inches as required by said contract, and said contractor failed to build the surface of the pavement at the intersection of said West Heidel Avenue on said South Monroe Street according to grade thereof so as to cause water flowing to said intersection to flow to the south and east side of said intersection and to be cast upon the property of defendant causing him irreparable injury; that had said pavement been constructed according to grade the water flowing into said intersection from the west and north would have flowed along the west line of South Monroe Street and away from defendant's property, but that by reason of the fact that said grade was raised and the curb along defendant's property was constructed lower than the height required by said contract, the defendant has been damaged and by reason of the fact that said failure to carry out said contract are substantial breaches thereof, said tax bill against the property of defendant should be cancelled and for naught held."

The answer prayed for cancellation of the tax bill, and plaintiff's reply was a general denial.

In presenting the first alleged conflict counsel for relator quote from respondents' opinion as follows:

"Plaintiff urges defendant is estopped from suing to...