191 Iowa 762 | Iowa | 1921
In the second count of its petition, plaintiff asked judgment against the city of Des Moines for an amount equal to the amount of interest on the contract price for the period from June 24, 1908, to December 31, 1913. The basis of this claim is that the plaintiff was entitled to 6 per cent interest on the contract price for paving, and was defeated in its right to receive and have the same, because of the failure of the city to include the accrued interest in the assessment certificates issued by the city in settlement under the contract.
Defendant set up three defenses:
(1) That the plaintiff is estopped from maintaining this action.
(3) That the matters relied upon by the plaintiff to support its cause of action have been adjudicated.
The district court entered decree and judgment in favor of plaintiff for the amount claimed in its petition.
Plaintiff company contracted with the defendant city to do some paving. Under the contract, plaintiff was to be paid by special assessment certificates, bearing interest at the rate of 6 per cent from the date of their issue. The work under the contract was completed on August 13, 1907; and on June 24, 1908, the defendant city accepted the work, and on that same day levied assessments and delivered assessment certificates to the plaintiff, dated June 24, 1908, and bearing interest at the rate of 6 per cent from and after that date. A large number of property owners appealed from the assessment, alleging, among other things, that the city council had not taken the proper jurisdictional steps to enable it to levy a valid assessment, and also that the contractor (this plaintiff) had not performed its contract so as to become entitled to payment for doing the work. On appeal of the property owners, the Polk County district court set the assessments aside, and from that decree an appeal was prosecuted to this court, which affirmed -the decree of the lower court on the sole ground that the city of Des Moines had not taken the necessary jurisdictional steps to have acquired power and authority to levy the assessments. See Gilcrest & Co. v. City of Des Moines, 157 Iowa 525. The special assessment certificates issued pursuant to the levy were thereby rendered invalid; but this court held that the city of Des Moines could lawfully take further proceedings leading to an assessment, by taking the necessary jurisdictional steps. Gilcrest & Co. v. City of Des Moines, supra.
Pursuant to the opinion of this court handed down on October 25, 1912, the city of Des Moines did, on the 31st day of December, 1913, reassess the property liable to assessment for the paving, with the exception of the Hurley property, and delivered to the Barber Asphalt Paving Company a new set of paving assessment certificates, dated December 13, 1913, and bearing interest at the rate of 6 per cent from that date.
It is undisputed, since determination in the second Gilcrest ease, that the Barber Asphalt Paving Company performed its contract; and it is undisputed that it has never been paid the full amount due as the contract price. It is also undisputed that interest on the contract price from June 24, 1908, the date of the first assessment and issuance of the first certificates (which were held invalid by the decision of this court rendered October 25, 1912), to December 31, 1913, the date of the reassessment and of the second issue of certificates, was not included in the amount of the second assessment, and the contractor has not been paid that interest.
This suit was commenced August 30, 1917. In the first count of its petition, the plaintiff asked judgment for $359.49, together with interest at 6 per cent from June 24, 1908. The basis of this claim is the fact that the original Hurley assessment was invalid, and was not reassessed, and that the contractor, having performed its work under the contract, is now entitled to judgment for the amount of the Hurley certificate, with interest, as adjudicated in the Gilcrest case.
In the second count of this petition, the plaintiff asks judgment for an amount equal to 6 per cent on the amount of the contract price (less the amount of the Hurley certificate) for
“The owners of one or two of the lots did not petition for the improvement, and no conduct on their part is shown on which a waiver or estoppel can be predicated. As to these lots [referring to the Hurley lots], the assessments are entirely void, and not merely erroneous. This defect is chargeable to the city or its officers, and not to the contractor; and, in the event that, upon further hearing, it is found that the contract has been substantially performed, then, so far as the cost of the improvement would otherwise have been chargeable upon these lots, the contractor will be entitled to judgment against the city.”
In the second Gilcrest case, wherein the decision was made on March 12, 1917, it was found that the Barber Asphalt Paving Company had performed its work according to its contract with the city; and that was all that was wanting to establish liability of the city for the amount of the Hurley assessment and interest thereon.
In making the second assessment, of December 31, 1913, the city failed to include in the assessment and the •certificates issued in pursuance of the assessments an amount equal to interest at 6 per cent on the contract price: that is, the portion of the contract price not already received by certificates which were not contested, from June 24, 1908, the date of the original issue of certificates, up to December 31, 1913, the date of the second issue. The Barber Asphalt Paving Company had completed its work, and the work had been accepted on June 24, 1908. The certificates then issued, which were adjudged invalid, bore interest at 6 per cent. Manifestly, the second issue of certificates, made on December 31, 1913, should have been for the amount of the original certificates, less certificates on assess
The defense of adjudication pleaded by defendant against plaintiff’s claims is apparently abandoned by defendant. It is not argued. It is without merit. The adjudication is in favor of appellee, and in no particular sustains the defense.
Objection is urged to the procedure adopted in the instant case, the defendant city saying that the only remedy of the contractor, this plaintiff, was by mandamus, to’ compel the city to act. This issue does not seem to have been raised in the pleadings, nor in any way in the presentation of this case to the lower court. However, the defendant city’s position in this respect is not well taken. It" may be conceded that generally the remedy is by mandamus, to compel a municipality to proceed to levy sums sufficient to satisfy the requirements of a contract for an improvement. As to plaintiff’s claim, based on the
In the instant case, the contractor, by reason of the wrongful action of the city, was unable to realize on the Hurley certificate issued to it in the amount of $359.49 and interest thereon, and we think he has a right to recover this amount from the city. The failure of the city to create and issue a valid certificate of assessment on June 24,1908, as to the Hurley property, was a breach of the contract between it and the Barber Asphalt Paving Company, entitling the contractor to damages sustained by such failure on the part of the city. Gilcrest & Co. v. City of Des Moines, 157 Iowa 525; Ft. Dodge E. L. & P. Co. v. City of Ft. Dodge, 115 Iowa 568; Turner Imp. Co. v. City of Des Moines, 155 Iowa 592; Bucroft v. City of Council Bluffs, 63 Iowa 646.
As a matter of general law, and by Section 825, Code Supplement, 1913, and by adjudication in the Gilcrest cases, the Barber Asphalt Paving Company was entitled to recover the amount of the Hurley certificate, to wit, $359.49, with interest
We come to the conclusion that the defendant city breached its contract, if not its expressed contract, its implied contract, by failing and neglecting to make a valid assessment against the Hurley property, and to deliver to the plaintiff a valid certificate, and also to include in the second assessment an amount equal to interest on the original certificates, which were held invalid, and for which the second series of certificates was issued. We therefore hold with the lower court that plaintiff has made out a case entitling it to recover on both counts of its petition. Accordingly, the judgment and decree of the lower court are affirmed. — Affirmed.