Whitworth v. Webb City

• Decision Date: 11 June 1907
• Citation: 204 Mo. 579,103 S.W. 86
• Parties: WHITWORTH v. WEBB CITY.
• Court: Missouri Supreme Court

103 S.W. 86

204 Mo. 579

WHITWORTH v. WEBB CITY.

Supreme Court of Missouri, Division No. 2.

June 11, 1907.

1. MUNICIPAL CORPORATIONS — PUBLIC IMPROVEMENTS—SEWERS—ORDINANCES—SUFFICIENCY.

Sewers in incorporated cities can only be constructed in pursuance of an ordinance passed by the council thereof for that purpose.

2. SAME.

An ordinance for the construction of a sewer, which designates the point of beginning, and points out the direction it shall take to a ravine, then to follow the natural water course of the ravine westward, crossing an electric railroad at a designated place, thence in a more northerly direction, passing west of a designated place and terminating a specified distance north of a road, and which provides that the sewer shall be constructed of pipe 10 and 12 inches in diameter, laid at an average depth of four feet, and shall cost approximately a specified sum, is sufficiently certain within Rev. St. 1899, § 5847 [Ann. St. 1906, p. 2956], providing that sewers shall be established at such points to such extent, of such dimensions and under such regulations, as may be provided by ordinance, and authorizes the city to enter into a contract for the construction thereof.

3. SAME—CONTRACTS—COMPLIANCE WITH ORDINANCE.

A city adopted an ordinance for the construction of a sewer, which designated the point of beginning, and points of direction, the size of the pipe, and the depth thereof. The city engineer prepared and filed, pursuant to the direction of the council, plans and specifications for the sewer. Thereafter a contract for the construction of the sewer in accordance with the plans and specifications was let, and the work was done in accordance therewith. Held that, as the plans and specifications must be regarded as if authorized by ordinance, and as supplying the necessary details for the construction of the sewer, it was built within the terms of an ordinance providing therefor.

4. SAME — LEGISLATIVE AUTHORITY—DELEGATION.

The power to locate sewers in cities of the third class, expressly vested in the council thereof by Rev. St. 1899, § 5847 [Ann. St. 1906, p. 2956], cannot be delegated to the city engineer.

5. SAME — CONSTRUCTION OF SEWERS — CONTRACTS—DELEGATION OF LEGISLATIVE POWER.

A city adopted an ordinance for the construction of a sewer, which designated the point of beginning, points of direction, size of pipe, and depth. The city engineer, pursuant to directions of the council, prepared plans and specifications which were treated as supplying the details for the construction of the sewer. The contract for the work was in compliance with the plans and specifications. Held, that the contract did not delegate to the city engineer the power to locate the sewer, expressly vested in the council by Rev. St. 1899, § 5847 [Ann. St. 1906, p. 2956].

6. SAME.

An ordinance of a city for the construction of a sewer designated the point of beginning, the general course thereof, its termination, and the depth thereof. The city engineer in making plans and specifications for the construction thereof, pursuant to the direction of the city council, made a slight divergence in the course of the sewer between its starting point and terminus. Held, that the act of the city engineer was not a location of the sewer on a route different from that indicated by the ordinance, in violation of Rev. St. 1899, § 5847 [Ann. St. 1906, p. 2956], vesting in the council the power to locate sewers.

7. SAME—PERFORMANCE OF WORK.

A city adopted an ordinance providing for the construction of a sewer, and pursuant to its terms the city engineer prepared plans and specifications therefor. A contract for the work in accordance with the plans and specifications was let. The contract recited that the council by virtue of an ordinance let the contract, and provided that, if the contractor should neglect to comply with the instruction of the engineer, or should fail to comply with the specifications, the council might cancel the contract and reject the work. The work was permitted to go on with full knowledge by the city authorities of the manner in which it was being done without protest on their part. A change in the location of the sewer was for the advantage of the city, and its council and committees approved thereof. The sewer as constructed was complete and serviceable. Held, that the city was estopped from denying its authority to make the contract and its liability to pay for the work.

8. SAME—ACCEPTANCE OF WORK.

Where a sewer has been constructed in substantial compliance with the terms of the contract therefor, the city on notification must receive the same, and it cannot refuse to pay therefor, though arbitrarily refusing to formally accept it.

9. APPEAL — HARMLESS ERROR — ERRORS NOT AFFECTING RESULT.

Where the judgment is for the right party, and no error materially affects the result, the Supreme Court is by the express provisions of Rev. St. 1899, § 865 [Ann. St. 1906, p. 812], prohibited from reversing the judgment.

Appeal from Circuit Court, Jasper County; Howard Gray, Judge.

Action by J. T. Whitworth against Webb City. From a judgment for plaintiff, defendant appeals. Affirmed.

G. V. Farris, J. J. Nelson, Morris Pritchett, and A. E. Spencer, for appellant. Thomas & Hackney, Edward J. White, and A. M. Whitworth, for respondent.

BURGESS, J.

This is an action to recover the sum of $7,692.40, the same being a balance claimed by plaintiff to be due him by defendant for the construction of a public sewer in defendant city, under a general and, what is claimed by plaintiff, a special ordinance and contract therefor, based upon certain plans and specifications covering the details and manner of construction. The length of the sewer when completed was about 11,300 feet. Plaintiff recovered judgment for the sum of $7,246.55, from which judgment the defendant, after unavailing motions for new trial and in arrest, appeals.

The petition alleges that on the 12th day of August, 1901, the defendant, as a city of the third class, entered into a contract with him, in writing, for the construction of the sewer, under which the plaintiff agreed to furnish all the labor and materials and complete the sewer, in accordance with the terms and conditions of the contract, and the defendant agreed to pay therefor, according to a fixed schedule of prices per unit, for all such labor and materials; that the contract was executed in duplicate and filed with the city clerk, as required by law; that the work of construction was to be carried out in accordance with the specifications adopted by the defendant and under the direction and supervision of the defendant's city engineer, who was given power to make alterations and require additions to said specifications, all additions to be paid for at the same rate as the labor and materials originally provided for; that within the time agreed upon the plaintiff completed the construction of the sewer, in accordance with the terms and conditions of the contract, under the orders and directions of the defendant's city engineer; that all labor and materials used was fully paid for by the plaintiff; and that the sewer was accepted by the defendant. Plaintiff also set out in his petition an itemized statement of the amount due at the contract price for labor and materials furnished, aggregating the sum of $9,692.40; credited the defendant with a payment thereon of $2,000, and alleged a demand and refusal to pay the balance due; alleged that: On November 18, 1901, the defendant's city engineer filed his final and supplemental estimate of the amount due the plaintiff, in the aggregate of $9,048, and alleged that said city engineer erroneously estimated only 547 cubic yards of solid rock excavated, whereas, in truth and in fact, plaintiff excavated 611 cubic yards of solid rock in making excavations for the sewer, and that the city engineer only estimated 4,762 cubic yards of earth and loose rock, whereas 5,698 cubic yards were excavated under the contract. That on notice from the city engineer after completion of the sewer the plaintiff did certain portions thereof over. He repaired and did additional work on the sewer, and reconstructed all parts that there were any objections raised to by the city engineer. That after the final and supplemental estimate by the city engineer the defendant, on February 1, 1902, appointed a new city engineer, who attempted to make another estimate, and the inability of such new city engineer to make a proper estimate and the improper conduct on the part of such new city engineer in the making of such new estimates is also alleged.

The answer admits the incorporation of defendant and the payment of $2,000 on the contract, and denies all other allegations of the petition. As an affirmative defense it is alleged: That the sewer mentioned in the petition was a public sewer, such as under the laws of Missouri could only be established at such points, to such extent, of such dimensions, and under such regulations as were provided by ordinance of defendant city. That the city never passed any ordinance establishing such sewer and fixing and defining the points where same was established, the extent and dimension thereof, and the regulations under which same should be constructed, and therefore such contract as defendant's officers may have attempted to make with plaintiff concerning said sewer was and is ultra vires and void. That the only ordinance ever passed by defendant's council was Ordinance No. 407, passed Oct. 15, 1900, providing that a public outfall sewer system is hereby established, to be known as the "Vine Street Sewer," the "Church Street Sewer" and the "Fourth Street Sewer." That the only provisions in said ordinance concerning said Fourth street sewer are: "The Fourth street sewer shall begin in the center of Fourth street, at the junction of Webb street; thence west on Fourth street to Roane street; thence south to ravine; then...