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

• Decision Date: 09 May 1910
• Parties: W. W. COOK & SON, Appellants, v. THE CITY OF CAMERON, Respondent
• Court: Kansas Court of Appeals

128 S.W. 269

144 Mo.App. 137

W. W. COOK & SON, Appellants, v. THE CITY OF CAMERON, Respondent

Court of Appeals of Missouri, Kansas City

May 9, 1910

Appeal from Clinton Circuit Court.--Hon. Alonzo D. Burnes, Judge.

AFFFIRMED.

Judgment affirmed.

John J McAnaw and LaVergne Orton for appellants.

The city by its own wrong prevented the contract from being carried out on the line contracted for. And by its own wrong caused the added expense and is liable to plaintiffs for the loss occasioned them by its fault or neglect. Murray v Kansas City, 47 Mo.App. 105; Brady v. St Joseph, 84 Mo.App. 399; Chambers v. St. Joseph, 83 Mo.App. 536; Ash v. Independence, 79 Mo.App. 73; Oster v. Jefferson City, 57 Mo.App. 485; Kansas City v. O'Connor, 82 Mo.App. 655; Steffen v. St. Louis, 135 Mo. 44; Messinger v. Buffalo, 21 N.Y. 196; 28 Cyc., XIII, C. 9b; 28 Cyc., IX, G. 3 O, page 94.

Frank B. Klepper and William Fitch for respondent.

(1) Plaintiffs assert their claim in direct opposition to the positive mandates of the law; under the pleadings and plaintiffs' evidence, it appears that the contract for extras was not in writing, no consideration for it was expressed, bears no date, was not signed by the parties, and all work and material were furnished before any price was mentioned. Douglass Co. v. Miller Co., 204 Mo. 194; R. S. 1899, sec. 6759; Schell City v. Mfg. Co., 39 Mo.App. 264; Taylor v. School Dist., 60 Mo.App. 372; Savage v. Springfield, 83 Mo.App. 323; Terry v. Board of Education, 84 Mo.App. 21; Pugh v. School Dist., 114 Mo.App. 688; Walcott v. Lawrence Co., 26 Mo. 272. (2) There can be no recovery on a quantum meruit against a city. Perkins v. School Dist., 99 Mo.App. 483. (3) Before a county contract is valid there must be a record of it made by the proper authority. Morrow v. Pike Co., 189 Mo. 610. (4) Persons dealing with officers of municipal corporations must at their peril ascertain the powers and authority of such officers. Cheeney v. Brookfield, 60 Mo. 53; Mister v. Kansas City, 18 Mo.App. 217; State ex rel. v. Transfer Co., 83 N.W. 32; Heating Co. v. Bertha, 97 N.W. 424; Black v. Detroit, 78 N.W. 660, 119 Mich. 571; Osgood v. Boston, 43 N.E. 108, 165 Mass. 281; Bennett v. Mt. Vernon, 100 N.W. 349, 124 Iowa 537; Madison v. Newsome, 22 So. 270, 39 Fla. 149; Waterworks Co. v. Raton, 49 P. 898, 9 N. M. 70. (5) If a contract leaves the consideration to be agreed upon after the work is done, the contract is void. R. S. 1899, sec. 6759; McBrien v. Grand Rapids, 56 Mich. 95, 22 N.W. 206. (6) Contractors cannot recover for extras ordered by the city engineer without authority from the city council. Leathers v. Springfield, 65 Mo. 504; Griffith v. Los Angeles, 54 P. 385; Carroll v. St. Louis, 12 Mo. 444. (7) Where a contract differs from an ordinance, the ordinance will prevail. Road Machine v. Sulphur Springs, 63 S.W. 908, 28 Cyc., 670, 671. (8) A contractor cannot recover in excess of the amount appropriated for the work under the contract. Perkinson v. St. Louis, 4 Mo.App. 322; Saxton v. St. Joseph, 60 Mo. 153. (9) A city is not estopped to plead ultra vires to its contracts. Wheeler v. Poplar Bluffs, 149 Mo. 36; O'Connor v. Kansas City, 82 Mo.App. 655; City of Unionville v. Martin, 95 Mo.App. 28. (10) A city engineer has no power under his office to extend time of contract. Ayres v. Schmoll, 86 Mo.App. 349. (11) A city has no power to ratify except by proper ordinance, and to ratify requires the same formality as to make a new contract. Kraffe v. Springfield, 86 Mo.App. 530; Maudlin v. Trenton, 67 Mo.App. 456. (12) Section 9 of specifications, alleged by plaintiffs as a part of the contract, was no part of contract in this case, and was void. Anderson v. Ripley Co., 181 Mo. 46. (13) The contract relied upon by plaintiffs was clearly ultra vires and void. Mister v. Kansas City, 18 Mo.App. 217; Pryor v. Kansas City, 153 Mo. 135. (14) The stipulation giving the city engineer power to estimate the costs of any changes that may be made was void as being a delegation of the city's power to contract and of its power to contract. Neill v. Gates, 152 Mo. 585; Haag v. Ward, 186 Mo. 325.

OPINION

JOHNSON, J.

This suit is for the recovery of $ 1093.37, 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 water-works 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 in-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 water-works 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 $ 1093.37, 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."

The city is using the extra pipe line and for argument, we shall concede that after the completion of the work the city accepted it by ordinance legally enacted and acknowledged plaintiffs' claim for extra compensation. There are questions of pleading and practice presented by the record and argued by the parties but since we conclude that the facts stated afford plaintiffs no cause of action on any tenable theory, the decision of such questions would be superfluous.

Defendant argues that the provisions of section 6759, Revised Statutes 1899, defeat the demand of plaintiff for the reason that the extras were furnished pursuant to an oral agreement, or without any contract, while the statute made the claim for compensation depend for its validity on a written contract entered into by the parties before the extras were furnished and stating the consideration to be paid by the city. On the other hand, plaintiffs seek to found their demand on the written contract the parties did enter into, and especially on the provisions of the specifications we have quoted, which must be regarded as an integral part of that contract. Should they fail to maintain this position plaintiffs argue that since the city has received the benefit of their labor and property, it should be held to have ratified the acts of its agents and thereby to have bound itself to pay for what it received. The doctrine is invoked that "A municipal corporation may ratify the unauthorized acts and contracts of its agents or officers which are within the scope of the corporate powers but not otherwise. Ratification may frequently be inferred from acquiescence after knowledge of all material facts, or from acts inconsistent with any other supposition." "The same principle is applicable to corporations as to individuals."...