Ash v. City of Independence, 103 Mo. App. 299

Ash v. City of Independence

103 Mo. App. 299 | Mo. Ct. App. | 1903

Lead Opinion

ELLISON, J.

— Plaintiffs were contractors in certain street improvements in the city of Independence. After having done a large part of the work they were prohibited by an injunction obtained by a property holder from going on therewith, on the ground that the city had not had assessed the damages and benefits caused by said improvement as required by law. . The plaintiffs were thus prevented from completing the work. Taxbills were afterwards issued to plaintiffs for the work done and these were declared, invalid on two grounds: one, that the city levied the tax upon only a part of the property abutting upon the street improved ; and the other, that the whole work had not been completed. City of Independence v. Gates, 110 Mo. 374,

The plaintiffs brought the present action against the city for damages on the ground that by the fault of the city in not having the damages assessed, they were prevented from completing the work and were thereby deprived of valid taxbills. On a trial judgment was given for the city and plaintiffs appealed the' case to the Supreme Court where it was transferred to this court. *302145 Mo. 120. That result was reversed in this court and the cause remanded for new trial; this court holding the city liable on the case there presented. Ash & Gentry v. Independence, 79 Mo. App. 70. On a retrial, an amended "answer'was filed in which among other defenses the statute of limitations was pleaded and a constitutional question was attempted to be raised. Plaintiffs'obtained judgment for damages and'defendant appealed to the Supreme Court and that court, being of the opinion that there was no constitutional question presented, transferred the case here:

These facts. appear oh the question of limitation: The contract for the improvement was made by these plaintiffs August 8, 1887; by its terms work was to be begun within ten days thereafter and was to be completed within twenty days after that, viz: September 7, 1887: time was stipulated as a condition of the contract! The injunction which stopped plaintiffs from work was issued September 17,1887, and was made perpetual March 15, 1888. This action was begun more than five years thereafter, to-wit: on March 25, 1893.

We determined in the case of Brady v. St. Joseph 84 Mo. App. 399, that the five-year period of limitations applied to a case of the kind before us. The question then is, when did plaintiff’s cause of action accrue against the ^defendant city? It accrued on the first day that plaintiffs might have instituted their action. The contract was that plaintiffs should make full performance by September 7, 1887. That implied that defendant would perform all duties on its part necessary, as a prerequisite,.to plaintiffs’ performance. So soon, therefore, as defendant’s act of omission in failing to have damages and benefits assessed necessarily prevented plaintiffs from performance within the time they were bound to perform, they had a fight to abandon it and look to defendant for consequent damages. They were not bound to wait further. They were not bound to put up with either defendant’s caprice, or indifferent *303neglect. If they were, how long must they wait before, their right to sue. would come about? It is not pretended that: defendant complied -with its duty to plaintiffs in the-respect-referred to, and the case, shows that an injunction put an end to the work on that account, and though the work (with the apparent acquiesence of all concerned) proceeded from September 7, the contract date for its completion, until September 17, the date of the injunction, yet at that date, at least, defendants wrongful omission became' effective in stopping plain-: tiffs ’ performance. And it then, at least, became known to plaintiffs that defendant had itself abandoned the contract by failing in precedent performance on its part. The facts existed at that time to complete plaintiffs’ cause of action and from that time the statute began to run. It follows that plaintiffs’ action is barred by the statute.

Plaintiffs contend that the city had a reasonable time in which to perform the duty of having an assessment of damages and benefits. This contention is answered in what we have already said of the contract.

The further contention is made that defendant by its conduct was estopped from setting up the statute of limitations. It is sufficient to say of this that no such issue was made by the pleadings in the trial court.

The judgment is reversed.

All concur.

Concurrence Opinion

BROADDUS, J. —

concurring on rehearing: An opinion was delivered in this case on the second of February, 1903. A motion for rehearing was sustained and the cause was resubmitted at the October term of the same year. After reconsideration we are of the opinion that the first holding was right. The rule in Heman v. Gilliam, 171 Mo. 258; s. c., 71 S. W. Rep. 163, afterwards followed in Sparks v. Villa Rosa Land Co., 99 Mo. App. 48; s. c., 74 S. W. Rep., which plaintiff insists governs in this case, we do not believe has any application whatever. In each one of those cases the *304controversy was between the contractor and the landowner and no.reference was made to the statute of limitations. The former opinion in this case is therefore adopted and the cause reversed.

All concur.