The City of Unionville v. Martin

• Citation: 68 S.W. 605,95 Mo.App. 28
• Parties: THE CITY OF UNIONVILLE, Appellant, v. W. B. MARTIN et al., Respondents
• Decision Date: 07 April 1902
• Court: Court of Appeals of Kansas

68 S.W. 605

95 Mo.App. 28

THE CITY OF UNIONVILLE, Appellant, v. W. B. MARTIN et al., Respondents

Court of Appeals of Missouri, Kansas City

April 7, 1902

Appeal from Johnson Circuit Court.--Hon. W. L. Jarrott, Judge.

AFFIRMED.

Judgment affirmed.

John McKinley, Marshall & Franklin and Barnett & Barnett for appellant.

(1) The officers of the city had no power or authority to prevent Martin from carrying out his contract, and did not do so. Under Martin's own testimony there is no pretense that the officers forcibly interfered and carried away the casing to have it perforated. The meaning and effect of his testimony is that he reluctantly yielded to their request to have the casing perforated. He could have prevented it if he had insisted. Hence, the peremptory instruction should have been given. (2) The perforating of the casing by agreement between the city and Martin did not constitute an alteration of the contract, or a departure from the plans and specifications, but was a method adopted of securing and saving the water, and was in nowise prohibited by the contract, but is a matter which might be contemplated by the contract. Western Bldg. Ass'n v. Fitzmaurice, 7 Mo.App. 283. (3) The city can neither make nor waive a contract by parol. It can only contract in writing in the manner prescribed by law. No statement made by city officers could amount to an alteration of the written contract in question. See section 6759, R. S. 1899; Crutchfield v Warrensburg, 30 Mo.App. 456; Taylor v. School District, 60 Mo.App. 372; May v. Crawford, 150 Mo. 504; Mayor v. Sonnebarn, 113 N.Y. 423. (4) The court erred in refusing instruction 8, asked by plaintiff. The $ 10 per day and the attorney's fees are specially provided for in the contract, and are legitimate items of damage under the contract and bond. Tinkham v Satori, 44 Mo.App. 659. (5) If said contract was invalid when executed, because the city had not power to make it, or that it was not made in the manner prescribed by law, yet defendants can only be heard to assert its invalidity while the same is wholly executory, and can not avail themselves of the defense of its invalidity after the same has been partly executed and defendant has received money thereon. City of St. Louis v. Davidson, 102 Mo. 149; Biglow v Estoppel (5 Ed.) 465; Railroad v. Railroad, 10 Shaw 464; Mayor v. Harrison, 30 N. J. L. 73; Middleton v. City of Elkhart, 120 Ind. 166; Hendersonville v. Price, 96 N.C. 423; Van Hook v. Whitlock, 26 Wend. 43; City of Burlington v. Gilbert, 31 Iowa 356; Daniel v. Terry, 102 U.S. 415; Ferguson v. Landram, 5 Bush (Ky.) 230.

John Cashman and J. W. Suddath for respondents.

(1) If the judgment be for the right party, even though error is committed in the trial, the cause will not be reversed. Comfort v. Ballingal, 134 Mo. 281; Miller v. Lange, 84 Mo.App. 219; Sebree v. Patterson, 92 Mo. 451. (2) The judgment should be affirmed for the reasons there was no ordinance authorizing the contract; the bond was not approved by the mayor as required by law; the petition pleads no ordinance and at the trial plaintiff admitted that there was no ordinance. The contract was therefore void. Laws 1893, p. 90, sec. 108, subdiv. 2; Stuebner v. St. Joseph, 81 Mo.App. 273; Rives v. City of Columbia, 80 Mo.App. 173; Kolkmeyer & Co. v. City of Jefferson, 75 Mo.App. 678; City of Carthage v. Badgley, 73 Mo.App. 123; Maudlin v. City of Trenton, 67 Mo.App. 452; City of Poplar Bluff v. Hoag, 62 Mo.App. 672; Wheeler v. City of Poplar Bluff, 149 Mo. 36; Cape Girardeau v. Fougeu, 30 Mo.App. 551; Werth v. City of Springfield, 22 Mo.App. 12; City to use v. Eddy, 123 Mo. 546; Eichenlaub v. The City of St. Joseph, 113 Mo. 395; Moore v. City of Cape Girardeau, 103 Mo. 470; Heidelberg v. St. Francois Co., 100 Mo. 69; Stewart v. City of Clinton, 79 Mo. 603; Werth v. City of Springfield, 78 Mo. 107; Thomson v. City of Boonville, 61 Mo. 282; Saxton v. City of St. Joseph, 60 Mo. 153; Saxton v. Beach, 50 Mo. 488. (3) The assent of a municipal corporation to the variation or modification of a contract need not necessarily be expressed by the formal action or resolution of the council; but it may be implied from acts relating to the contract work subsequent to the date of the contract. 1 Dillon (4 Ed.), secs. 451-459; Robinson v. St. Louis, 28 Mo. 488; Litchfield v. Bollon, 114 U.S. 190; Nashville v. Toney, 10 Lea. 643. (4) A municipal corporation may ratify the unauthorized acts and contracts of its agents and officers which are within the scope of its corporate powers. Devers v. Howard, 88 Mo.App. 253; Water Co. v. City of Aurora, 129 Mo. 540; State ex rel. v. Milling Co., 156 Mo. 620. (5) "Strong evidence of the assent of the corporation is not required." Water Co. v. City of Aurora, 129 Mo. 540; 1 Dillon on Municipal Corp. (4 Ed.), sec 464. (6) "The only ratification necessary would be acceptance of the work and payment for same." Devers v. Howard, 88 Mo.App. 253. (7) The city is bound by the acts of the committee done in the supervision of the work of having the well-casing perforated. 1 Dillon on Municipal Corporations (4 Ed.), secs. 445-450; Duncombe v. City of Ft. Dodge, 38 Iowa 281; Fleckner v. Bank, 8 Wheat (U.S.), 338. (8) The city of Unionville ratified the acts of the committee by paying for perforating the wellcasing. This made the city liable for the consequences resulting from the perforation of the casing. 1 Dillon (4 Ed.), sec. 463. (9) If Martin is estopped from denying the validity of the contract with the city on account of irregularity of the proceedings of the city in making the contract, then the city is estopped from setting up a non-liability for having perforated the casing by a like irregular manner of proceedings. Mutuality is a necessary ingredient of an estoppel. Hempstead v. Easton, 33 Mo. 142; Schenck v. Stumpf, 6 Mo.App. 381; Carondelet v. St. Louis, 29 Mo. 527; State ex rel v. Murphy, 134 Mo. 548. (10) "Where a municipal corporation enters into a contract, which it has the power to make, the doctrine of estoppel applies to it with same force as to individuals." Union Depot Co. v. St. Louis, 76 Mo. 393; State ex rel. v. Murphy, 134 Mo. 548.

OPINION

SMITH, P. J.

--The plaintiff, a city of the fourth class, entered into a written contract with defendant Martin whereby the latter undertook to bore a well for the former. The latter, with his co-defendants as sureties, further entered into a bond to such former in the sum of three thousand dollars, conditioned for the faithful performance of said contract and to refund all moneys advanced to the latter by such former in case of a refusal, failure or neglect to complete the work specified in said contract.

This is an action on said bond to recover the penalty thereof. The petition alleges that defendant Martin begun the work under said contract, and after drilling a hole about seven hundred feet, abandoned the said contract and left the work in an incomplete and unfinished condition. It further alleges that during the progress of the work the plaintiff from time to time advanced to defendant Martin on said contract, various amounts of money aggregating $ 1,472.75, which he has refused to refund although requested so to do. It was still further therein alleged that by the terms of said contract, defendant Martin bound himself to complete the work therein specified within one hundred and eighty days from May 15, 1896, and to pay the plaintiff the sum of two dollars a day as a forfeit for each day that should occur between the expiration of said period and the completion of the work, and that the number of days that said work had remained incomplete after the expiration of said period were far more than sufficient to make the amount of the forfeiture exceed three thousand dollars. There was also a still further allegation to the effect that under the contract the defendants were liable to pay an attorneys' fee for the prosecution of the action which was reasonably worth three hundred dollars. Judgment was demanded for three thousand dollars, the penalty on the bond, etc.

Separate answers were filed by defendant Martin and the other defendants, the sureties. The answer of the former admitted the execution of the contract and bond, but pleaded that the contract was illegal and void. There was pleaded also the further defense that during the progress of the work the plaintiff, against the objections of defendant Martin and contrary to the provisions of said contract, caused about one hundred feet of the steel casing, which was used to form the lining of the well, to be perforated by drilling holes therein in such a way as left the interior of said casing with rough edges and beards protruding therein so that the ropes used in drilling the well were thereby cut, and the drill, which was of enormous weight, dropped to the bottom of the well--a distance of over seven hundred feet; and that by reason of such perforations, water, sand and gravel flowed through the same and settled upon the said drill and apparatus, rendering it impossible to extricate the same or to further prosecute the work; and that in consequence of such unwarranted interference by plaintiff, defendant Martin was prevented from fully complying with the said contract, etc. A counterclaim was also pleaded.

The separate answer of the surety defendants admitted the execution of the contract and bond, and alleged that the plaintiff had no authority in law to make the former or to accept the latter of these instruments, and that therefore the same were void. It was therein further pleaded that defendant Martin by reason of the interference of the plaintiff with the execution of the contract by said Martin was prevented from completing the work thereunder; and that such...