Town of Carrollton v. Tonnar

• Decision Date: 26 May 1930
• Docket Number: No. 16117.,16117.
• Parties: TOWN OF CARROLLTON, to Use of HANCHETT BOND CO., v. TONNAR.
• Court: Missouri Court of Appeals

28 S.W.2d 443

TOWN OF CARROLLTON, to Use of HANCHETT BOND CO., v. TONNAR.

No. 16117.

Kansas City Court of Appeals. Missouri.

May 26, 1930.

Appeal from Circuit Court, Carroll County; John T. Morris, special Judge.

"Not to be officially published."

Action by the Town of Carrollton, to the use of the Hanchett Bond Company, assignee of C. F. Brindle, against M. B. Tonnar. Decree for plaintiff, and defendant appeals.

Affirmed.

Franken & Timmons, of Carrollton, for appellant.

Charles L. Graham, of Carrollton, for respondent.

BARNETT, C.

This is an action by the assignee of a tax bill to establish a lien against the property of defendant for the paving and curbing of West Heidel avenue in the town of Carrollton in Carroll county, Mo. There was a decree for plaintiff for the amount of the tax bill and interest in the total sum of $483.49. A motion for a new trial was ineffectual, and defendant has appealed.

The suit was brought under the provisions of section 8738, Rev. St. 1919, relating to the enforcement of tax bills in cities operating under special charters; Carrollton being of that class. The petition is formal, alleging the necessary facts showing that the tax bill sued on was for the paving and curbing of West Heidel avenue in the town of Carrollton; that plaintiff is the assignee of the tax bill and is suing thereon to subject the property of defendant (to wit, lots 2 and 3, block 24, in said town) to payment of the same. The prayer asks judgment for the amount thereof with interest and that the same be declared a special lien upon defendant's said property. The answer admits ownership of the property and alleges that defendant has refused to pay the tax bill and sets up several defenses, the one with which we are concerned being as follows:

"* * * Defendant states that there was no substantial performance of the terms and conditions of the contract for the paying, 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 (6) 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 canceled and for naught held."

The prayer is for cancellation of the tax bill. The reply is a general denial. The special defense upon which issue was joined in the trial was that the contractor failed substantially to perform his contract in the construction of the pavement and curbing, in that the height of the curbing or guttering at the northwest corner of defendant's property was lowered from 6 to 3 inches, and the paving raised over 7 inches west of defendant's property, thus causing large quantities of water to flow over the curbing at the low point and casting large amounts of mud and water on defendant's property whereon his home is located, to his damage.

The facts of record show that West Heidel avenue runs east and west and that it is intersected in a line westward by South Folger, South Monroe, South Locust, and Smith streets, and so on west beyond the locality involved in this action. The pavement of West Heidel avenue began at the west line of South Folger street and continued to the west end of Heidel avenue, a distance of about 1,300 feet. One block north of defendant's property is West Washington street, also paved, which runs parallel with West Heidel avenue. The street between West Washington street and West Heidel avenue, and touching defendant's property on the west, as extended south of West Heidel, is an unpaved or dirt street called South Monroe street, and it slopes to the south from Washington street. West Heidel avenue slopes from its intersection with the west line of South Folger Street West, at a decline of 8 per cent. for a distance of 100 feet; thence .4 per cent. for the next 100 feet. The first street west of South Monroe street is South Locust, which slopes from the west toward South Monroe at a decline of 5.2 per cent. for the distance of 200 feet between South Locust and South Monroe streets.

Defendant's property which is the subject of this controversy lies at the southeast corner of the intersection of South Monroe street and West Heidel avenue, and is somewhat lower than the grade of the two streets. The evidence shows that during the construction of the pavement at said intersection, at the northwest corner of defendant's property, a pocket was formed in the gutter of the said pavement. The pavement was constructed 3 inches thicker in the gutter, but the grade was not changed. It is admitted the plans called for a 12-inch curb with a guttering 6 inches above the pavement at the point in question. It is also admitted that the curb at the northwest corner of defendant's property, or the guttering, was as low as 3 or 3½...