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

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJohnson
Citation144 Mo. App. 137,128 S.W. 269
Decision Date09 May 1910
PartiesW. W. COOK & SON v. CITY OF CAMERON.
128 S.W. 269
144 Mo. App. 137
W. W. COOK & SON
v.
CITY OF CAMERON.
Kansas City Court of Appeals. Missouri.
May 9, 1910.
Rehearing Denied May 23, 1910.

1. MUNICIPAL CORPORATIONS (§ 351)—CONTRACTS — ACCEPTANCE OF BENEFITS—EFFECT.

A city receiving the benefits of a contract fairly and lawfully made may not escape liability thereon by technically refusing to accept the work done under it, but a city accepting the benefits of a contract void under Rev. St. 1899, § 6759 (Ann. St. 1906, p. 3327), making a contract for public work void, unless it is in writing and states the consideration the contractor is to receive, is not liable therefor.

2. MUNICIPAL CORPORATIONS (§ 230)—CONTRACTS —VALIDITY.

One contracting with a city is chargeable with notice of the restrictions the law imposes on the power of officials to contract in behalf of the city.

3. MUNICIPAL CORPORATIONS (§ 360)—CONTRACTS FOR PUBLIC WORK—DEMAND FOR EXTRA WORK—VALIDITY.

Where the original contract for public work did not state the consideration for extra work, which it was contemplated the city engineer might order, and there was no subsequent contract in writing relating thereto, a demand for extra work ordered by the engineer was not enforceable under Rev. St. 1899, § 6759 (Ann. St. 1906, p. 3327), making a contract void unless it is in writing, and states the consideration the contractor is to receive.

4. MUNICIPAL CORPORATIONS (§ 360)—CONTRACTS FOR PUBLIC WORK — POWER TO MAKE ALTERATIONS.

A contract for the construction of a city waterworks system according to specifications authorizing the city engineer to make alterations in the line, form, grade, or dimensions of the work does not confer on the engineer power to change the general plan of the improvement, but only power to make incidental changes in carrying out the plan, and, where the engineer directs the contractor to use for a pipe line another and longer route necessitating the use of additional iron pipe and excavation in rock, the contractor may refuse, but, where he does the work ordered without any written contract as required by Rev. St. 1899, § 6759 (Ann. St. 1906, p. 3327), he cannot recover therefor.

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...

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6 practice notes
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...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. Warrensburg, 30 Mo. App. 456. (4) The judg......
  • Donovan v. Kansas City, No. 38305.
    • United States
    • United States State Supreme Court of Missouri
    • November 1, 1943
    ...its corporate powers or one not expressly authorized by law. 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 Compressed Air Co. v. Fult......
  • West Va. Coal Co. v. St. Louis, No. 28101.
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1930
    ...corporation has no earthly protection against either greed or graft. [Likes v. Rolla, 184 Mo. App. 296; Cook & Son v. Cameron, 144 Mo. App. 137; State ex rel. v. Dierkes, 214 Mo. Granting that the city in the purchase of supplies for operating the waterworks was acting in a proprietary ......
  • Riley v. City of Rock Port, No. 20019.
    • United States
    • Court of Appeal of Missouri (US)
    • October 5, 1942
    ...is demonstrated in Scott v. St. Louis County, 341 Mo. 1084, 111 S.W.2d 186, and in the case of Cook & Son v. City of Cameron, 144 Mo.App. 137, 128 S.W. 269, and the authorities referred to in those cases. In the case of Iowa Bonding & Casualty Co. v. City of Marceline, Mo.App., 255 ......
  • Request a trial to view additional results
6 cases
  • Kansas City v. Halvorson, No. 38611.
    • United States
    • United States State Supreme Court of Missouri
    • December 6, 1943
    ...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. Warrensburg, 30 Mo. App. 456. (4) The judg......
  • Donovan v. Kansas City, No. 38305.
    • United States
    • United States State Supreme Court of Missouri
    • November 1, 1943
    ...its corporate powers or one not expressly authorized by law. 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 Compressed Air Co. v. Fult......
  • West Va. Coal Co. v. St. Louis, No. 28101.
    • United States
    • United States State Supreme Court of Missouri
    • March 5, 1930
    ...corporation has no earthly protection against either greed or graft. [Likes v. Rolla, 184 Mo. App. 296; Cook & Son v. Cameron, 144 Mo. App. 137; State ex rel. v. Dierkes, 214 Mo. Granting that the city in the purchase of supplies for operating the waterworks was acting in a proprietary ......
  • Riley v. City of Rock Port, No. 20019.
    • United States
    • Court of Appeal of Missouri (US)
    • October 5, 1942
    ...is demonstrated in Scott v. St. Louis County, 341 Mo. 1084, 111 S.W.2d 186, and in the case of Cook & Son v. City of Cameron, 144 Mo.App. 137, 128 S.W. 269, and the authorities referred to in those cases. In the case of Iowa Bonding & Casualty Co. v. City of Marceline, Mo.App., 255 ......
  • Request a trial to view additional results

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