591 S.W.2d 723 | Mo. Ct. App. | 1979
Appellants brought suit against respondent City of Fredericktown to recover the cost of the installation of water and sewer lines within a subdivision development. Appellants grounded their action on a municipal ordinance providing for reimbursement by the City, under certain conditions, of the cost of, construction of water and sewer lines placed in subdivisions by developers. The City defended the action for a variety of reasons, among which were: that there had been a repeal of the reimbursement ordinance; that no written contract existed upon which to base their liability; and that the five year statute of limitations of § 516.120(2), RSMo 1978, barred appellants’ claim. In inditing detailed findings of fact and conclusions of law, the trial court ruled in the City’s favor. We affirm on the ground that there was no written contract.
Appellants are developers in Frederick-town. In the course of developing certain
No final or official plat of any subdivision shall be approved unless: (a) the subdivider agrees with the Board of Aldermen upon an assessment whereby the city is put in an assured position to install the improvements listed below at the cost of the owners of property within the subdivision, or (b) the improvements listed below have been installed prior to such approval, or (c) the subdivider filed with the Board of Aldermen a surety bond, cashier’s check, or a certified check upon a solvent bank located ' in the City of Fredericktown conditioned to secure the construction of the improvements listed below in a satisfactory manner and within a period specified by the Board of Aldermen, such period not to exceed two years. No such bond or check shall be accepted unless it be enforceable by or payable to the city in a sum at least equal to the cost of constructing the improvements- as estimated by the City Engineer and in form with surety and conditions approved by the City Attorney.
Appellants were reimbursed by the City under Ordinance No. 202
The trial court in its well written findings of fact, conclusions of law and judgment found, among other reasons, that appellants’ claim for recovery was deficient as they had failed to obtain the requisite Ordinance No. 68-10 final approval of their development plans or by failure to fulfill conditions of preliminary plans which had been given conditional approval. The .trial court found that appellants were not entitled to any recovery for any costs expended subsequent to May 27, 1968. Appellants recognize that there has been a failure of compliance in certain aspects with Ordinance Nos. 202 and 68-10 but have based their claim on an alleged contractual obligation by the City to reimburse them for their expenses. However, the trial court concluded, inter alia, that there was no written contract between the parties; that without a written contract appellants have no right of recovery under § 432.070, RSMo 1978, which specifically provides:
No . . city . . . shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law . . . ; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.
Appellants assert that the City has reaped the benefit of $16,568.36 in water and sewer line improvements installed by them post-Ordinance No. 68-10; that the City is thereby estopped from denying the existence of a contract, particularly as payments had been made pre-Ordinance No. 68-10. We first note that the benefits derived from appellants sewer and water line construction efforts were to the subdivisions owned and developed by appellants. But further, Mo. Intern. Inv., Inc. v. City of Pacific, 545 S.W.2d 684 (Mo.App.1976), provides a remarkably poignant rejection to appellants’ estoppel and undeserved benefits argument through the following statement:
Plaintiff attempts to parry this rule [the rule of § 432.070] . with the theory that the city should be estopped from denying the existence of the contract because it accepted the benefits of the contract and made a partial payment thereon. The city did pay plaintiff $1,750.00 after receiving a bill from plaintiff for that amount. The city may have also received some additional benefits as a result of plaintiff’s efforts which were the subject of this law suit. But ‘[t]he contract, absent the prescribed writing, is void. The fact a municipality has received the benefit of a performance by the other party does not make the municipality liable either on the theory of a ratification, estop-pel or implied contract’, (original emphasis) Id. at 685.
Accord: State ex rel. Walmar Investment Co. v. Mueller, 512 S.W.2d 180 (Mo.App.1974).
Appellants dwell on the fact that the mayor and city clerk approved certain of the plats. But the cachet of those two officials to the plats is not enough to fulfill the directives of § 445.030 that subdivision plats be approved by ordinance. Certainly, more than the mayor’s and city clerk’s imprimaturs or conversations with a municipal employee unauthorized to speak for the City is necessary to raise any writing to the status of an effective written contract within the meaning of § 432.070 or to qualify as a binding authorization or approval of contract conditions by the City. There must be direct authorization by the Board of Aldermen. State ex rel. State Hwy. Com’n v. City of Sullivan, 520 S.W.2d 186 (Mo.App.1975); State ex rel. Walmar Investment Co. v. Mueller, supra.
Having reached the conclusion that appellants are not entitled to recover for the foregoing reasons, we need not address other findings and conclusions of the trial court serving as a basis for the denial of appellant’s claim.
Judgment affirmed.
. Fredericktown has acknowledged in open court that it owes appellants $117.85 for water and sewer line costs incurred prior to May 27, 1968. Both parties have stipulated that this item is not at issue in the case and may be disregarded by this court.
. Ordinance No. 202 was expressly repealed on October 13, 1975.