Traders' Bank v. Payne

• Decision Date: 13 June 1888
• Citation: 31 Mo.App. 512
• Parties: TRADERS' BANK, Appellant, v. M. J. PAYNE, Respondent.
• Court: Kansas Court of Appeals

31 Mo.App. 512

TRADERS' BANK, Appellant, v. M. J. PAYNE, Respondent.

Court of Appeals of Missouri, Kansas City.

June 13, 1888

Appeal from Jackson Circuit Court, HON. JAMES H. SLOVER, Judge.

Affirmed.

Statement of case by the court.

This is an action to recover on several tax bills issued by the engineer of the City of Kansas to Comstock & Halsey, as contractors, for the paving of Broadway, a street on said city, from Third street south to the city limits. The plaintiff sues as assignee under Comstock & Halsey.

The special defence alleges that defendant " did not substantially or at all comply with said contract with the city for the doing of said work in this, that by the terms of said contract the concrete under the blocks was to be of the depth or thickness of nine inches, but defendant says that said concrete foundation, as laid by said contractors under their said contract, was laid only to the thickness or depth of six inches."

On the admission that the tax bills made out a prima-facie case for the plaintiff, it objected to the introd uction of any evidence by defendant in support of the special defence. This was overruled.

The ordinance authorizing the improvement, and the contract under which Comstock & Halsey did the work, were read in evidence by defendant. So much of this contract as is pertinent to this controversy is as follows:

" SUB-GRADE AND FOUNDATIONS.

The surface of the roadway within the limits above specified to be excavated to sub-grade, which will be seventeen inches below, and parallel to the established grade and finished surface and cross-section of the street, as shown on plans or above indicated.

On this sub-grade will be placed a layer of hydraulic cement concrete not less than nine (9) inches thick, formed as hereinafter provided, and a layer one inch thick of clean Kaw river sand spread thereon, and wetted down with sprinkling hose.

In any case where the excavation may be made below said sub-grade no back filling of clay will be allowed, but the extra depth must be made with concrete which will not be measured or paid for.

CONCRETE.

Concrete to be composed of five parts, by measure, of broken stone to two parts, by measure, of sand to one part, by measure, of hydraulic cement.

The stone to be of hard ledge limestone, broken to pass at their greatest dimensions through a ring of two and one-half inches in diameter. They shall be screened, if necessary in the opinion of the city engineer, to secure the stones being free from fine parcels of dirt or stone, and shall be thoroughly washed with hose, and wetted before being used.

Cement to be fresh ground, to be tested and accepted by the city engineer before being used in the work. Condemned cement to be immediately removed from the work. Cement will be required to stand a tensil strain of thirty-five pounds per square inch twenty-four hours after mixing. Contractor to provide dry storage for cement, and any barrels damaged to be thrown out.

The concrete to be mixed in suitable wooden boxes of such size as the city engineer may direct. The concrete shall be formed by first thoroughly mixing the sand and cement dry in proper proportions; water to be then added in sufficient quantity only to give the mortar a proper consistency. The stones (which are to be wet) and the mortar, to be then thoroughly and rapidly mixed together in the box with shovels, and the mass turned over until every stone is completely covered with mortar.

The concrete to be then quickly carried to its proper place either on shovels or in wheelbarrows, boxes, or other suitable manner, and deposited in mass without scattering. In no case will it be thrown off shovels. Concrete in place to be rammed until mortar flushes to surface. No concrete to be used after it has begun to set.

The finished surface of the concrete to conform as near as may be practicable to a line parallel to, and eight (8) inches below the true finished grade and crossstation of the street, and any guideboards which the city engineer may direct shall be furnished by the contractor, and used for this purpose.

The edges of each fresh section of concrete to be stepped back at least two feet to furnish a bond with the next section.

Care to be taken not to disturb the concrete until it is thoroughly set, and any precautions which the city engineer may deem necessary to prevent damage or injury shall be taken by the contractor at his own expense. No concrete shall be laid when the temperature is below 35 F. After the concrete has, in the opinion of the city engineer, become sufficiently set, and not until that time, the contractor shall begin laying the blocks thereon. Concrete to extend close up to, and around all openings, projections, or irregularities in such manner as the city engineer may direct for the purpose of securing close contact, and preventing water getting underneath.

The surface of the concrete to be kept wet by hose if required until covered with full depth of sand."

The defendant's evidence showed clearly that the concrete foundation on this street did not average over six and three-fourths inches, and in no place examined did it exceed seven inches, and running as low as six inches. This examination extended from Third street north to the limits of the city, covering some eighteen blocks or more. The evidence, however, did not show that this examination was made between Eighth and Ninth streets, and there was some doubt as to whether it was made between Seventh and Eighth streets. But over the rest of the street the examination was made at intervals, on either side, of thirty-five to fifty feet by digging down to the bottom of the concrete and measuring to the top.

The contractors were not introduced as witnesses by the plaintiff.

The plaintiff introduced as a witness the city engineer, who testified that cement would shrink more or less after being laid, depending somewhat upon the moisture of the ground and other conditions; but his testimony failed to explain the discrepancy of three inches or more of such shrinkage. In rebuttal defendant's expert testimony tended to contradict this theory of the engineer. Plaintiff also sought to show that the work done in this instance was good, and the pavement was as good as any in the city.

On this state of the proofs the defendant asked and the court gave the following declaration of law:

" If the jury believe from the evidence, that the average depth or thickness of the concrete under the pavement, for the construction of which the tax bills sued on were issued, was not substantially nine inches as required by the contract, then such tax bills, and each of them, are void, and the jury cannot find for the plaintiff in any sum whatever, but must find for the defendant on all the counts of the petition."

The plaintiff asked the following instructions

" 1. Upon the pleadings and the testimony the jury will find the issues for the plaintiff on each count for the amount claimed, with fifteen per cent. interest per annum from the dates of the tax bills."

" 2. The court instructs the jury that, although they may believe from the testimony that all the details of the contract, upon the completion of which the tax bills were issued, were not carried out, yet, if they further believe from the testimony that the variance from the contract was not material nor substantial, and that the pavement actually laid, and for which said bills were issued, was as durable as if all the details on the contract had been strictly complied with, then they will find for the plaintiff on each count for the amount of the tax bill therein described, with fifteen per cent. per annum interest from the date of the tax bill."

" 3. If the jury believe from the evidence that the contract upon which the tax bills in suit are founded, was substantially complied with, then their finding will be for the plaintiff upon each count therein claimed with fifteen per cent. per annum interest from the date of the tax bill."

The court refused the first and second, and gave the third.

Verdict and judgment for defendant. Plaintiff appealed.

JOHNSON & LUCAS, for the appellant.

I. The answer of defendant is framed to avoid the provisions of article eight, section four, of the charter of Kansas City. Laws of Mo., 1875, p. 252. But defendant, not having tendered or pleaded any tender of the value of the work done, provided by said section, is not entitled to make the defence. There is no question in this case of the completion of the work, as in Meyer v. Wright, 19 Mo.App. 283, and no testimony to support the special defence was admissible.

II. ( a ) It was not shown that there was less than nine inches of concrete in front of defendant's lots; and the tax bills were prima-facie evidence of the furnishing of the material doing the work, and of the liability of the property therefor. Bad work at other places on the street does not constitute a defence for this defendant. Creamer v. Bates, 49 Mo. 523; Eyerman v. Zeppenfield, 6 Mo.App. 581. (b ) As a further bar to the maintenance of this defence, section four of the charter (Acts 1875, p. 252) provides that " no suit on any bill shall be defeated or affected by any irregularity affecting only other bills, or matter rendering any other bill invalid, in whole or in part." In the case of Meyer v. Wright, supra, there was a failure to complete the work in front of the defendant's property.

III. ( a ) The instruction given for the defendant was erroneous. What had the " average depth" of the concrete to do with the liability of defendant's lots? A total absence of concrete, under pavement a mile away, might defeat the bills under this instruction, and yet defendant's lots would get the full benefit of...