Van Hafften v. Clayton

• Decision Date: 03 March 1924
• Docket Number: No. 14487.,14487.
• Parties: VAN HAFFTEN v. CLAYTON et al.
• Court: Missouri Court of Appeals

259 S.W. 530

VAN HAFFTEN v. CLAYTON et al.

No. 14487.

Kansas City Court of Appeals, Missouri.

March 3, 1924.

Appeal from Circuit Court, Buchanan County; L. A. Vories, Judge.

"Not to be officially published."

Suit by A. W. Van Hafften against Charles E. Clayton and others. Judgment for plaintiff, and defendants appeal. Reversed, and remanded for new trial.

See, also, 246 S. W. 964; State ex rel Clayton v. Bland, 256 S. W. 757.

Eugene Silverman, of St. Joseph, for appellants.

John E. Dolman, of St. Joseph, for respondent.

TRIMBLE, P. J.

Plaintiff brought suit upon a special tax bill issued by the city of St. Joseph, Mo., against a lot owned by the defendants, for the paving of a street. A jury was waived, and the cause was tried by the court, resulting in a judgment sustaining the validity of the tax bill and enforcing the same as a lien upon the property aforesaid.

The defense was that the tax bill is void because the work was not completed within the time limit specified in the contract. The reply denied generally, and set up that the defendants herein, in concert with others, instituted for their common purpose and benefit, two certain suits, naming them, for the purpose of having adjudicated the same question set up in defendants' answer herein, and that in each of said suits a final judgment was rendered against the plaintiffs therein, and that defendants herein are therefore estopped and barred by said final judgments from further litigating the said question or from again putting the same in issue.

The ordinance authorizing the improvement, and, of course, forming part of the contract, provided that the work was "to be completed within one hundred thirty (130) days after the contract shall be awarded; provided, that the time fixed for the completion hereof shall be extended for such length of time as the contractors may be actually and necessarily prevented from pursuing said work by reason of bad weather, a general strike of his employés, or injunction against him."

The contract was awarded September 24, 1914. It provided that—

"The work embraced in this contract shall be begun within ten (10) days after this contract binds and takes effect, and shall be prosecuted, regularly and uninterruptedly, thereafter with such force as to insure its full completion within one hundred thirty (130) days from the date of the award; the time, beginning, rate of progress and time of completion being essential conditions of this contract."

"The time fixed for the completion of this contract shall be extended for such length of time as the contractor may be actually and necessarily prevented from pursuing said work by reason of bad weather, a general strike of his employés, or injunction against him."

Plaintiff, after making a prima facie case by the introduction of the issued tax bill with its due assignment to him, rested; and thereupon defendants proceeded with their evidence in defense.

Defendants introduced W. K. Seitz, the city engineer at the time of the trial (May 29, 1922), who was in charge of the records of that office, but who was not city engineer at the time of the doing of the work. He testified that he found in his office "some papers which purport to be the reports of the inspectors on that particular job (the work of constructing the improvement in question), and on the report dated the week ending October 22, 1915, I find the notation `Finished pavement 10:45 a. m., October 22, 1915.'" He further testified that this was the only record he found in his office showing the date of the completion of the work. The papers referred to by the witness as purporting to be the reports of inspectors were fifteen in number, and on the last one, under the head of "Remarks," were these words "Finished pavement 10:45 a. m. 10/22. Date work was completed 10/22, 1915." After the introduction of these papers, defendants rested, and plaintiff introduced his rebuttal.

From this evidence it appears that the validity of the ordinance authorizing the work was attacked by an injunction suit entitled "Lizzie McQueen v. Van Deusen et al.," and a temporary injunction was issued which stopped the work. The abstract of record does not show the date on which the temporary injunction was issued, but from the statements made in the briefs by both sides it appears to have been issued on October 7, 1914. The record shows that in November, 1914, the circuit court, in the Mc-Queen injunction suit, rendered judgment holding the ordinance valid, and adjudging that the temporary injunction be dissolved. However, upon McQueen taking steps to appeal, the trial court, on November 15, 1914, by an order of record, directed that the temporary restraining order "be continued in force during the pendency of this appeal."

The record further shows that said appeal was to this court, and resulted in an affirmance of said judgment in an opinion of this court, handed down on May 24, 1915 (Mc-Queen v. Van Deusen, 189 Mo. App. 492, 176 S. W. 1057); that our mandate in said cause was filed in the trial court on June 5, 1915; that on July 30, 1915, the trial court, by an entry of record, acknowledged or recognized the mandate of the appellate court, and ordered that "the injunction heretofore entered of record in this cause, be and the same is hereby dissolved and held for naught."

The record further shows that, after the work was completed and the tax bills issued therefor, including the one sued on, a suit was, on April 13, 1916, brought in the name of Willis Williams, as owner of one of the lots affected, to cancel the tax bill on said lot, on the ground, among others, that the work was not completed within the time prescribed by ordinance. After the assault on the tax bills in this suit was finally defeated, another suit was instituted in the name of the Bowen Improvement Company, another property owner affected by the tax bills issued for the improvement in question, whereby the judgment of temporary injunction in the Mc-Queen suit was sought to be set aside in equity, so that, upon elimination of it, the defense that the work was not done in 130 days could be interposed to defeat the tax bills. This effort failed. See Bowen Improvement Co. v. Van Hafften, 209 Mo. 629, 238 S. W. 147. The two suits here mentioned are the suits set up in plaintiff's reply herein as having already adjudicated the defense interposed, and barring or estopping defendants from again raising the issue of the work not having been completed in time.

The government Weather Bureau observer was placed on the stand, in the trial of the case at bar, and identified a number of monthly statements showing the dares of rainfall at St. Joseph, covering the period from June 15, 1915, to and including October, 1915, which were introduced in evidence, but these statements are not shown in the abstract of the record.

As heretofore stated, the trial occurred, or rather commenced, on May 29, 1922, while the work was done in 1915, nearly seven years before. Consequently, when plaintiff went, on the stand to testify, he stated he had no personal recollection of the particular days the work was prevented by rain. But he swore that the work was not delayed in any manner by lack of material, or equipment, or any other cause, except rain; that by going over his payroll and comparing the time his men did not work with the weather reports he could arrive at the number of days he was prevented by rain. There was evidence also that in the business of mixing concrete a light rain will interfere with and prevent the work, doubtless because cement must be kept dry until ready to be mixed with the water and other ingredients, and the concrete must be laid at once or it will set and harden before it can be properly applied; that even though a rain take place in the latter part of one day, if it be heavy enough, it will prevent work being done the next day.

Plaintiff, after comparing his payrolls with the weather reports introduced in evidence, swore that he was delayed 25 days by rain; and a statement which he had compiled from his comparison of the payrolls with the weather reports was offered in evidence, which he swore was correct. It appears from said statement that from July 12, 1915, to October 22, 1915, there were 25 days in which the work was prevented by rain. Although said statement covers the period down to October 22, 1915, the date defendants claim the work was completed, yet on plaintiff's cross-examination it appears that he was not claiming any extension by reason of rain after the 12th of October, 1915. In this connection he swore that after that day "we were practically done our work and just cleaning up." Although defendants finally say in their main brief that they "will accept the statement contained in Exhibit B that 25 days' work was lost by reason of bad weather," yet we do not understand this as conceding that 25 days were lost by reason of bad weather, but only as a mere provisional or argumentative acceptance in presenting the claim that when 23 Sundays (which plaintiff had excluded) were included, as defendants were contending should be done, still, even with 25 days granted as loss of time for bad weather, the work was not finished in time. Defendants urged, and now contend, that the hereinabove mentioned statement compiled by plaintiff is a mere conclusion, and that their cross-examination of plaintiff destroyed its value as evidence that 25 days were lost by rain, since, they say, only 16½ days instead of 25 are accounted for.

Said statement, so compiled by plaintiff, showed that the total time from September 24, 1914 (date contract was awarded) to October 7, 1914 (date temporary injunction in McQueen Case was issued), and from May 24, 1915 (date opinion was handed down affirming McQueen Case), to October 22, 1915 (date defendants claim work was completed), amounted to 165 days. Although the statement compiled by plaintiff showed that 165 days were...