W. E. Bowen Improvement Co. v. Van Hafften

• Citation: 238 S.W. 147,209 Mo. App. 629
• Decision Date: 06 March 1922
• Docket Number: No. 14125.,14125.
• Parties: W. E. BOWEN IMPROVEMENT CO. v. VAN HAFFTEN
• Court: Court of Appeal of Missouri (US)

238 S.W. 147

209 Mo. App. 629

W. E. BOWEN IMPROVEMENT CO. v. VAN HAFFTEN

No. 14125.

Kansas City Court of Appeals. Missouri.

March 6, 1922.

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

Suit by the W. E. Bowen Improvement Company against A. W. Van Hafften. Decree for plaintiff, and defendant appeals. Reversed.

W. B. Norris and John E. Dolman, both of St. Joseph, for appellant.

Eugene Silverman and Strop & Mayer, all of St. Joseph, for respondent.

TRIMBLE, P. J.

A proper understanding of this case requires a preliminary statement of the circumstances of its origin.

By reason of the topography of the country in a certain section of the city of St. Joseph, it became necessary to pave a portion of several connected streets combined into one continuous"highway, and an ordinance for this purpose and authorizing such work was duly passed, and the proper steps were taken resulting in the letting of a contract to one Van Deusen for the paving of the highway thus formed. The contract and bond between the city and the contractor required the work to begin within 10 days and to be completed within 130 days from the awarding of the contract, the time, however, to be extended for such period as the contractor was actually and necessarily prevented from work by injunction, etc.; and the bond provided that in case of failure to perform said contract, the contractor should forfeit $500 as liquidated damages.

The contractor, after beginning the work, learned that it was the widespread opinion in legal circles that the ordinance was invalid because it attempted to authorize the improvement of parts of different streets as one, and, upon consulting a former city counsellor, was advised that the ordinance was void. He thereupon consulted his attorney and was advised to forfeit his bond of $500 rather than take the chances of losing the expense of the entire job, about $25,000.

He was before the board of public works of the city for this purpose, when the city engineer suggested to the contractor's attorney that a test case be brought to determine the validity of the ordinance. It does not appear in the evidence of the case now at bar just what officers of the city were consulted, but merely that as "a result of the conference between the contractor and the city," it was arranged that a suit should be brought by a property owner as a test case. And thereupon the case of McQueen v. Van Deusen was brought, in which a temporary injunction was issued restraining the contractor from further prosecution of the work until the validity of the ordinance could be determined. The case was finally adjudicated, the validity of the ordinance upheld, and the temporary injunction dissolved. See McQueen v. Van Deusen, 189 Mo. App. 492, 176 S. W. 1057.

Thereafter the work was completed, but, of course, not within the time provided in the contract, to wit, 130 days, unless the time in which the temporary injunction in the McQueen Case was in force could be counted out of the period.

About six months after the work was completed, the suit of Willis Williams v. Van Deusen was brought to cancel a tax bill issued for the improvement against a lot standing in the name of Williams, and the chancellor canceled the tax bill on the ground that the work was not completed in time; the time the injunction was in force not being allowed any effect for the reason that the contractor was the real plaintiff in the case against himself and was therefore himself responsible for the delay. This judgment was affirmed in this court, the author hereof writing the opinion. See Williams v. Van Deusen, 203 Mo. App. 162, 219 S. W. 395. That opinion, however, overlooked or failed to grasp the fact that this was collaterally attacking, not the judgment in the McQueen Case establishing the validity of the ordinance, but the preliminary judgment creating the temporary injunction. Consequently, on certiorari, the Supreme Court quashed the decision and judgment in the Williams Case. See State ex rel. Van Hafften v. Ellison, 285 Mo. 301, 226 S. W. 559, 12 A. L. R. 1157.

The case now before us for review is a proceeding in equity brought for the purpose of directly attacking the preliminary judgment creating the temporary injunction in the McQueen Case, so that upon elimination of it the defense that the work was not done within the 130 days can be interposed to defeat the tax bills. The present action has its origin in a remark made by the Supreme Court in the certiorari case (285 Mo. 314, 226 S. W. loc. cit. 563) that—

"The city would be entitled to a hearing in any suit to vacate the orders; [those establishing and continuing in force the temporary injunction], and if they were procured by Van Deusen, and the city, instead of conniving at his act, was ignorant of it, a remedy by a suit to annul the orders and thereby prevent Van Deusen from deriving an extension of time from them, would have been available to the city; and that remedy is available to any property owner, including Williams, whose rights are affected by the extension."

The case at bar was heard by the chancellor and a decree was entered setting aside or annulling the judgments creating and continuing in force the temporary injunction in the McQueen Case. Doubtless he did so because he felt bound by what was said in the decision in the case of Williams v. Van Deusen, 203 Mo. App. 162, 219 S. W. 395, especially in paragraph 2, page 398 of 219 S. W. To the extent that he did so, no responsibility should rest on him for the disposition he made of the case.

The fundamental and crucial reason impelling the author hereof (and the court) to the conclusion reached in the Williams Case is to be found in the second column of page 398 of said 219 S. W. That was that, although there was no actual fraud nor improper motive in the bringing of the McQueen suit, and although there was an honest, bona fide, earnest and faithful effort on both sides to have the question correctly settled, yet the opportunity and danger afforded for fraud and imposition in allowing a suit to be brought by one, in the name of another, against himself, is so great that it should not be permitted to have or accomplish any result, and that—

"Without regard to whether the McQueen Case could be regarded as strictly a moot case or even a collusive action, which last-mentioned term connotes or includes the idea of a wrongful purpose, still we think that, inasmuch as it was instigated and carried on by the contractor himself, he is not entitled to be credited with the time caused by the delay arising therefrom."

The principle and reason stated in the foregoing is good and to it we adhere as a general proposition. But upon a more mature and thorough consideration of the circumstances to which it was there applied, aided by what is perhaps a fuller and more lucid presentation of those facts in the present case, we are of the opinion that, aside from the question of collateral attack mentioned above, the decision in the Williams Case overlooked the broad equities involved in the peculiar and unquestioned circumstances of the case.

In the case at bar it still is beyond question that, while the contractor did instigate and maintain the McQueen suit, yet it was not done with any corrupt or fraudulent motive, nor for the...