Stover v. City of Springfield

• Citation: 152 S.W. 122,167 Mo. App. 328
• Parties: STOVER et al. v. CITY OF SPRINGFIELD et al.
• Decision Date: 02 December 1912
• Court: Court of Appeal of Missouri (US)

152 S.W. 122

167 Mo. A. 328

STOVER et al. v. CITY OF SPRINGFIELD et al.

Springfield Court of Appeals. Missouri.

December 2, 1912.

Rehearing Denied December 23, 1912.

1. MUNICIPAL CORPORATIONS (§ 462) — PUBLIC IMPROVEMENTS — ESTIMATED COST — CONTRACT PRICE.

Where the engineer's estimate of the cost of a district sewer in a city itemized the work and the cost, and the contract specified the same items at a less price for each item than the estimate, and provided that extra work should be done and paid for according to the estimate, the mere fact that, after the work was completed and computed, the total cost exceeded the total estimate, did not affect the validity of the special tax bills issued therefor, since it could not be assumed that the estimate of the total cost should control over the estimate of the items.

2. MUNICIPAL CORPORATIONS (§ 446) — PUBLIC IMPROVEMENTS — CONSTRUCTION OF SEWERS — CHANGES AFTER LETTING OF CONTRACT.

Material changes in the construction of a district sewer in a city, made after the letting of the contract, by shortening one of the ditches called for and by adding laterals at places not called for, necessary to proper drainage for the entire district, were proper in view of the duty of the city to construct the sewer so as to properly accommodate the property owners of the district, and did not affect the validity of the special tax bills, especially as the contract provided for changes in the work with proportionate alteration in the price.

3. MUNICIPAL CORPORATIONS (§§ 360, 446) — PUBLIC IMPROVEMENTS — CONSTRUCTION OF SEWERS — CHANGES AFTER LETTING OF CONTRACT.

Changes in the grade of the main pipe of a district sewer in a city lessening the cost of the work without impairing the service to be rendered do not vitiate the contract or the special tax bills.

4. MUNICIPAL CORPORATIONS (§ 474) — PUBLIC IMPROVEMENTS — DISTRICT — AREA.

A property owner, suing to cancel special tax bills for the construction of a district sewer, may show that a tract within the district had been omitted in computing the area of the district, and that thereby the cost to the property owner complaining had been increased to that extent.

5. APPEAL AND ERROR (§ 1056) — HARMLESS ERROR — ERRONEOUS EXCLUSION OF EVIDENCE.

Where, in a suit to cancel special tax bills for the construction of a district sewer, it appeared that the area of the district as computed by the city engineer was not less than the actual area, the exclusion of evidence that a tract within the district had been omitted in computing the area was not prejudicial.

6. MUNICIPAL CORPORATIONS (§ 513) — PUBLIC IMPROVEMENTS — CONSTRUCTION OF SEWERS — CANCELLATION OF SPECIAL TAX BILLS.

A property owner, suing to cancel special tax bills for the construction of a district sewer, may show that during the trial persons had made excavations of the ditch at various points, and that at such points the side walls of the ditch showed but a small proportion of flint excavation, to show mistakes in the totals returned as flint excavation.

7. APPEAL AND ERROR (§ 1056) — HARMLESS ERROR — EXCLUSION OF EVIDENCE.

The exclusion of such evidence was harmless error, in the absence of any showing that the remainder of the trench was of the same formation, where the proportion of such openings to the length of the entire excavation was exceedingly small.

8. CUSTOMS AND USAGES (§ 15) — CONTRACTS — CONSTRUCTION — PUBLIC IMPROVEMENTS.

A contract for the construction of a district sewer fixed the price per lineal foot for all excavation of 6 feet and under 8 feet at 30 cents; 8 feet and under 10 feet, 25 cents; * * * 16 feet and under 18 feet, 60 cents, etc.; price per lineal foot for rock trench per foot in depth, 25 cents; and declared that only such ledge rock, limestone as required blasting for removal should be estimated as rock excavation, and should be paid for by the lineal foot, depth of earth excavation to cease where rock excavation began. The evidence showed that in the doing of the work rock was found at the bottom of the ditch, but at what section or how deep the excavations were at places where rock was found was not shown. Held, that parol evidence of the practice in the city to allow the 25 cents per lineal foot for rock excavation in addition to the amount charged had earth extended to the bottom was admissible to show that the contractor was entitled to charge for excavation in accordance with such practice.

9. EVIDENCE (§ 448) — PAROL EVIDENCE — INTENTION OF PARTIES.

A contract must be construed as a whole, and, where its terms are clear when so construed, the court must declare as a matter of law the meaning of the contract, but, where it is not clear, parol testimony may be resorted to to show the condition of the matter about which the contract was made.

10. CONTRACTS (§ 170) — CONSTRUCTION — CONTEMPORANEOUS CONSTRUCTION.

The court in construing an ambiguous contract may consider the construction placed on it by the parties themselves, as an aid in determining the intention of the parties by the language used.

11. MUNICIPAL CORPORATIONS (§ 518) — PUBLIC IMPROVEMENTS — SPECIAL TAX BILLS.

The court, foreclosing special tax bills not paid within six months as provided by law, properly computes interest at 15 per cent. to the date of judgment; but the judgment will bear but 6 per cent. interest from its rendition.

Nixon, P. J., dissenting.

Appeal from Circuit Court, Greene County; James T. Neville, Judge.

Action by J. P. Stover and others against the City of Springfield and another. From a judgment for defendants, plaintiffs appeal. Affirmed.

Henry C. Young, of Springfield, for appellants. Barbour & McDavid, of Springfield, for respondents.

COX, J.

Action by certain property owners to cancel special tax bills issued to defendant Plummer as contractor in payment for the construction of a district sewer in the city of Springfield. The defendants in their answer alleged compliance with the law and ordinances of the city and asked for a foreclosure of the lien of the tax bills issued against the property of the plaintiffs. The trial court found for the defendants, except that he reduced the amount of each bill 10 per cent. and then ordered foreclosure for the remainder of the tax bills. Plaintiffs have appealed.

The questions upon which plaintiffs rely for a reversal of the judgment are: First. That the contract for putting in the sewer was let at a price in excess of the preliminary estimate of the city engineer. Second. That material changes were made in the construction of the sewer after the contract was let, by the addition of laterals not called for in the contract and by omitting other parts that were called for in the contract. Third. That there was a change of grade after the contract was made. Fourth. That there was a double charge for excavating by charging for both dirt and rock in the same part of the ditch. Fifth. That the court erred in excluding certain testimony offered by the plaintiffs.

As to the first point, we do not think the contention is sustained by the testimony. The estimate of the engineer itemized the work and the cost. He estimated that it would require 1,705 lineal feet of 8-inch pipe including Y's, branches and joints, two lamp holes, two flush tanks, four manholes, etc. The excavation was classified and a separate estimate put upon all excavations including back filling, 6 feet and under 8 feet being in one class; 8 feet and under 10 feet in...