W. W. Cook & Son v. City of Cameron

Decision Date09 May 1910
Citation144 Mo. App. 137,128 S.W. 269
CourtMissouri Court of Appeals
PartiesW. W. COOK & SON v. CITY OF CAMERON.

Appeal from Circuit Court, Clinton County; A. D. Burnes, Judge.

Action by W. W. Cook & Son against the City of Cameron. From a judgment for defendant, plaintiff appeals. Affirmed.

John J. McAnaw and La Vergne Orton, for appellant. Frank B. Klepper and William Fitch, for respondent.

JOHNSON, J.

This suit is for the recovery of $1,093.37, claimed by plaintiffs to be due them from defendant, a city of the third class, for material and labor furnished in the construction of a municipal waterworks system. In obedience to a peremptory instruction, the jury returned a verdict for defendant. Pursuant to an ordinance duly passed, defendant entered into a written contract with plaintiffs, by the terms of which plaintiffs agreed to furnish certain work and material for the waterworks for the consideration of $26,998. The contract approved by ordinance required plaintiffs, among other things, to "furnish cast-iron pipe, hydrants and valves, install pipe system complete and connect up tower and take with pipe system, all according to plans and specifications," and provided that "all of the said work and every part of said material shall be at all times subject to the approval and inspection of Hiram Phillips, engineer of said waterworks system, as provided for in the specifications for said work, which are hereby made and constituted a part of this contract." Plaintiffs fully performed this contract, and received from the city the full amount of the consideration stated. They furnished extra work and material of the value of $1,093.37, for which they have not been paid, and their claim for compensation for these extras is the subject of this action.

It appears that, after the work was started by plaintiffs, the city met with serious obstacles in obtaining the right of way for the pipe line along the route laid in the plans and specifications. Another and longer route was selected, and plaintiffs were directed by the engineer to use it for the pipe line. To comply with this direction called for extra iron pipe of the length of 705 feet and for 300 cubic yards of extra excavation in rock. One of the plaintiffs testified: "I told him (the engineer) it would necessitate a good deal more pipe to do the work, and there would be other additional expense. Q. Did he say anything else? A. Only for me to go ahead. Q. Just state all you told him there. A. I told him it would be an extra expense, and I didn't know what about it until we consulted the mayor and the committee. I did so. * * * Q. What did they tell you? A. They told me to go on." For some reason, the records of the proceedings of the council were not produced, but it appears from the testimony of the mayor that the change in the route of the pipe was authorized by a motion or resolution. We quote as follows from his testimony: "Q. When this motion was made and the route changed, was there anything in that to establish the price of the material? A. I think not. It's simply to change the route. The price was not specified, as I recollect. Q. Was there anything in that motion by which any definite description of the material to be used was given? A. I think not. Just general specifications for the work. Q. Was there anything in that motion as to the excavating necessary to make this change? A. The rock excavation never was thought of until we got to it. * * * Q. The price of this change including material and work was not stated in the motion, was it? A. I think not." The engineer made and filed with the city council his estimate of the cost of the change, but no contract in writing was made for these extras, nor was their cost agreed upon by the parties. The specifications referred to in the contract were lost, and therefore could not be introduced in evidence, but it appears to be conceded that they contained the following provision: "The engineer may make alterations in the line, form, grade, or dimensions of the work herein contemplated, either before or after the commencement of construction, and he shall be the sole judge of the damages sustained by the contractor and his decision shall be final."

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22 cases
  • Kansas City v. Halvorson
    • United States
    • United States State Supreme Court of Missouri
    • 6 Diciembre 1943
    ......Sec. 3349, R.S. 1939; Sec. 92, Art. IV, Charter of Kansas City; Fleshner v. Kansas City, 156 S.W. (2d) 706; W.W. Cook & Son v. City of Cameron, 128 S.W. 269; Carter v. George, 264 S.W. 463; Donovan, Admr., v. Kansas City, 175 S.W. (2d) 874; Crutchfield v. ......
  • Kansas City v. Halvorson
    • United States
    • United States State Supreme Court of Missouri
    • 6 Diciembre 1943
    ...... must be in writing. Sec. 3349, R.S. 1939; Sec. 92, Art. IV,. Charter of Kansas City; Fleshner v. Kansas City, 156. S.W.2d 706; W.W. Cook & Son v. City of Cameron, 128. S.W. 269; Carter v. George, 264 S.W. 463;. Donovan, Admr., v. Kansas City, 175 S.W.2d 874;. Crutchfield v. ......
  • Donovan v. Kansas City
    • United States
    • United States State Supreme Court of Missouri
    • 3 Marzo 1944
    ......Mulvey, . 232 F. 513; Staacke v. Routledge, 241 S.W. 994;. Uhlmann v. Kin Daw, 103 P. 435; Keating v. Kansas City, 84 Mo. 415; Cook v. City of. Cameron, 114 Mo.App. 144; Wolcott v. Lawrence. County, 226 Mo. 272; Lively v. Webb City, 106. S.W.2d 517; General Electric Co. ......
  • Donovan v. Kansas City
    • United States
    • United States State Supreme Court of Missouri
    • 1 Noviembre 1943
    ......See Savage v. Springfield, 83 Mo.App. 323, 329; Cook & Son v. Cameron, 144 Mo.App. 137, 143, 128 S.W. 269, 270; Perkins v. Independent School District, 99 Mo.App. 483, 488, 74 S.W. 122, 124; Montague ......
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