The City of St. Louis to Use of Glencoe Lime & Cement Company v. Von Phul
| Decision Date | 17 March 1896 |
| Citation | 34 S.W. 843,133 Mo. 561 |
| Parties | The City of St. Louis to use of Glencoe Lime and Cement Company, Appellant, v. Von Phul et al |
| Court | Missouri Supreme Court |
Appeal from St. Louis City Circuit Court. -- Hon. Daniel Dillon Judge.
Reversed and remanded.
G. W Lubke and W. B. Homer for appellant.
(1) The court erred in sustaining the objection to the introduction of the bond and contract. (2) It is established beyond controversy in this state, that a person for whose benefit an express promise is made, in a contract between other parties may have the benefit of such promise. Howsmon v. Trenton Water Co., 119 Mo. 307; Ellis v. Harrison, 104 Mo. 276. (3) A debt due by a municipal corporation to its creditor may by a creditor's bill be subjected to the satisfaction of a judgment against the latter. Pendleton v. Perkins, 49 Mo. 565; Johnson v. Pub. Co., 122 Mo. 102; St. Louis v. Lumber Co., 114 Mo. 87; Furlong v. Thomssen, 19 Mo.App. 364; Pickens v. Dorris, 20 Mo.App. 1; St. Louis v. Keane, 27 Mo.App. 642; Luthy v. Woods, 1 Mo.App. 167; Luthy v. Woods, 6 Mo.App. 67. (4) Provisions like the one in the contract in suit, made for the benefit of laborers and material men, have been sustained for many years in Missouri. Luthy v. Woods, 6 Mo.App. 70; St. Louis v. Keane, 27 Mo.App. 642; St. Louis v. Lumber Co., 114 Mo. 74. (5) The city not only had power as a corporation to enter into a contract of this kind, but it was bound to do so for the benefit of the laborers and material men, who were doing the work. Chambers v. St. Louis, 29 Mo. 579; Luthy v. Woods, 6 Mo.App. 70; St. Louis v. Keane, 27 Mo.App. 642; St. Louis v. Lumber Co., 114 Mo. 74; Knapp v. Swaney, 56 Mich. 349; Bank v. Mayor, 97 N.Y. 355; M. & T. Bank v. New York, 123 N.Y. 265; State v. Flad, 26 Mo.App. 500; City of Kansas v. O'Connell, 99 Mo. 357; St. Louis Charter, art. 3, sec. 26, spec. 14; also art. 3, sec. 26, spec. 2; also art. 6, secs. 27 and 28.
Willis H. Clark for respondent, Municipal Trust Company; and Laughlin, Wood & Tansey for respondent, Butler.
(1) The city of St. Louis was without corporate capacity to delegate, to private individuals and for private purposes, its public corporate capacity to sue in the courts; nor to confer upon third parties the right to sue upon a contract between the municipality and contractors and sureties for public work; and any provision, exacted by the city, in any such contract, that the contractors and sureties shall be so liable to suit so brought, is inoperative and void. Constitution of Missouri, art. 9, secs. 20 to 25 inclusive; Charter of the city of St. Louis; K. C. Sewer Pipe Co. v. Thompson, 120 Mo. 218; Howsmon v. Trenton Water Co., 119 Mo. 304; Ins. Co. v. Trenton Water Co., 42 Mo.App. 118; City of Kansas ex rel. v. O'Connell, 99 Mo. 357; Breen v. Kelly, 45 Minn. 252; Ferris v. Carson Water Co., 16 Nev. 44; Davis v. Waterworks Co., 54 Iowa 59; Mott v. Water & Mfg. Co., 48 Kan. 12; St. Louis v. Telephone Co., 96 Mo. 623; New Haven v. Railroad, 62 Conn. 252; Knapp v. Kansas City, 48 Mo.App. 485.
OPINIONIn Banc.
Defendants Von Phul and Joseph Grimm secured a contract from the city of St. Louis to repair the sidewalks in a certain district. The contract provided in detail for the work, the materials to be used, and for the payment therefor by special tax bills to be charged against adjacent property. At the end of, and as a part of, the contract was this obligation, signed by the contractors and the Municipal Trust Company and Edward Butler as securities:
"The said St. Louis Sidewalk Company, Stephen Von Phul and Joseph V. Grimm, proprietors, as principal, and Municipal Trust Company and Ed. Butler as sureties, hereby bind themselves and their respective heirs, executors, and administrators, unto the said city of St. Louis in the penal sum of ten thousand dollars, lawful money of the United States, conditioned that in the event the said St. Louis Sidewalk Company shall faithfully and properly perform the foregoing contract according to all the terms thereof, and shall, as soon as the work contemplated by said contract is completed, pay to the proper parties all amounts due for material and labor used and employed in the performance thereof, then this obligation to be void, otherwise of full force and effect, and the same may be sued on at the instance of any material man, laboring man, or mechanic, in the name of the city of St. Louis, to the use of such material man, laboring man, or mechanic, for any breach of the condition hereof; provided that no such suit shall be instituted after the expiration of ninety days from the completion of the above contract."
The Glencoe Lime and Cement Company furnished the contractors materials for use in performing their contract. The suit is upon the contract, wherein plaintiff claims a balance due on account of materials furnished amounting to $ 9,153.30.
On the trial plaintiff offered in evidence an ordinance of the city providing for constructing and repairing sidewalks.
The defendants, the Municipal Trust Company and Edward Butler, objected to the introduction of any testimony in the case as against them for the reason that the petition failed to state or to show facts sufficient to constitute any cause of action in favor of either the city of St. Louis or the Glencoe Lime and Cement Company against the said defendants or either of them, and that under the allegations made in the petition, neither the city of St. Louis nor the Glencoe Lime and Cement Company have any right of action upon the instrument sued upon against the said defendants or either of them.
The objection was sustained, and judgment was rendered in favor of said defendants and plaintiff appealed.
I. That a contract between two parties upon a valid consideration may be enforced by a third party, when entered into for his benefit, is well settled law in this state. This is so though such third party be not named in the contract, and though he was not privy to the consideration. Rogers v. Gosnell , 58 Mo. 589; State ex rel. v. Gas-Light Co., 102 Mo. 472, 14 S.W. 974; Ellis v. Harrison, 104 Mo. 270, 16 S.W. 198, and cases cited. It is sufficient in order to create the necessary privity that the promisee owe to the party to be benefited some obligation or duty, legal or equitable, which would give him a just claim.
II. It is the policy of the law in this state to give security and protection to those who expend labor or supply material in making improvements for the benefit of private persons. This is done by securing to them by express law a lien upon the improvements upon which the labor was done, and in which the materials were used. The right to such security does not depend upon the character of the contract between the owner and contractor, under which the improvements were made.
That these lien laws are founded upon principles of equity and right can not be questioned. The principle is that the labor expended and the material employed create the improvements and the one benefited thereby should see that compensation therefor is made.
Through considerations of public policy the law has made no provision by lien, or otherwise, for the protection of the laborer and material men for labor employed or material used in improving the public streets. But it can not be denied that the same equity exists, and that the same moral obligation rests upon the city to protect those who improve its streets as rest upon those making private improvements. "Individuals clothed with public functions, even when constituting a corporation, are no more excused from moral obligations than when acting in a private capacity." Knapp v. Swaney, 56 Mich. 345, 23 N.W. 162.
There can, we think, be no doubt that the duty the city of St. Louis owed to anyone who should labor upon, or furnish material for, the improvements contemplated by the contract would create such a privity between them as would entitle the latter to the benefits intended to be afforded them under the express conditions of the bond.
III. But it is said that the bond, in so far as it undertakes, as a condition, to require the contractor "to pay to the proper parties all amounts due for material and labor used and employed in the performance" of the contract, is void for the reason that the city had no power to exact it.
It must be, and is, conceded, that "a municipal corporation has no general authority to exchange promises with other corporations or persons; its contracts, to be valid, must be within the scope of the authority conferred upon it by law, and for municipal purposes." Thomas v. Port Huron, 27 Mich. 320.
But municipal corporations have not only the rights and powers expressly granted them but also such implied powers as are necessary to carry into full effect those expressly granted. "Their contracts will be valid when made in relation to objects concerning which they have a duty to perform, an interest to protect, or a right to defend." Vincent v. Nantucket, 12 Cush. 105.
The charter grants to the city of St. Louis not only the power to improve its streets, and keep them in repair, but requires all such improvements to be let out by contract to the lowest bidder, and further requires a bond to be given by the contractor with at least two sufficient sureties. These powers and duties are express. Can it be doubted that under these express powers would be also implied the authority to provide by contract every detail of the duty of the contractor? The power to make improvements and to let contracts therefor and to exact of the contractor a bond for the faithful performance of his contract necessarily implies the power to do everything necessary for the faithful performance of the work, for the protection of the...
To continue reading
Request your trial