88 Mo. App. 253 | Mo. Ct. App. | 1901
This action is upon a bond executed by the defendant Howard as principal and the defendants Van-divert and Phillips as securities to the city of Bethany, Missouri, for the digging of a well at and for the price of $800. The object of the bond was two-fold in its character, viz.: For a faithful performance of the work; and, secondly, for the purpose of securing all persons who might perform labor or furnish material for the construction of the well. The well was completed and accepted by the city. The plaintiff sues on said bond for material consisting of stone furnished by him to defendant Howard in the construction of said well. The finding was for the plaintiff in the circuit court and against Howard and the other defendants, his securities, from which, they have appealed.
By certain ordinances of the city of Bethany, enacted in March and February, 1894, the question was duly and legally submitted to the voters of said city, as to whether said city would become indebted in the sum of thirty thousand dollars in excess of its annual revenue for the purpose of erecting, maintaining and operating a combined system of waterworks and electric light works, to supply the citizens of the corporation with water and light. The election was formally and legally held in pursuance of said ordinances on the twenty-seventh day of February, 1894, and the proposition was carried
On the fifteenth of August, next following, tbe board of aldermen met and by resolution accepted tbe well dug by defendant Howard, on condition “that be and bis bondsmen pay all debts and accounts contracted for walling, digging and constructing tbe well, and for all labor and material furnished on tbe same,” and provided for paying him tbe amount due him. Tbe motion recites that Vandivert and Phillips were present. In fact, tbe resolution recites in full tbe settlement then and there bad between tbe city and defendant and bis securities. In ■other words, tbe settlement and adjustment of tbe claims of defendant Howard and bis securities for tbe construction of tbe well is embodied in tbe form of a resolution. All tbe ordimances and resolutions herein referred to were objected to as incompetent evidence on tbe part of the- defendants. Tbe plaintiff’s evidence sustained bis claim for material which entered into tbe construction of tbe work. Tbe defendants rested their case without tbe introduction of any evidence on their part.
Tbe second amended petition on which tbe cause was tried, after stating that the city of Bethany was a city of tbe fourth class, proceeds to set out tbe contract in suit without reference
The defendants contend that the petition does not state a cause of action, inasmuch as the ordinances of the city are not pleaded predicating the right to make the alleged contract; that the bond and contract are ultra vires and void; and that the suit should have been in the name of the city of Bethany.
Hpon the first point, that the petition does not state a cause of action, the position of the defendant is not tenable. Erom the allegations of the petition that the contract was en
If the plaintiff Devers was not the proper party plaintiff, and the suit should have been in the name of the city of Bethany, the defendant has waived the error, for the reason that if the face of the pleading shows a defect of parties plaintiff, the defendants’ remedy would have been that of demurrer and not by answer as herein, even though they have made it a special matter of defense. See Dodson v. Lomax, 113 Mo. 555; Walker v. Deaver, 79 Mo. 664; Rogers v. Tucker, 94 Mo. 346
The record shows that there was no ordinance authorizing the mayor to enter into the contract for the construction of the well and for the taking of the bond, although the city had the right to make the contract, inasmuch as the citizens had voted to increase the indebtedness of the municipality for the purpose of erecting a waterworks system, and the funds had been provided for paying for the same. The contract was entered into on the part of the city upon the passage of the resolution in evidence, awarding the contract to defendant Howard. This resolution does not even authorize the mayor to execute the contract. But the record in this case shows that in pursuance of said contract the bond in suit was executed to the city, and that the defendant constructed the well and the city paid him for his work as agreed upon in the written contract. This is not, therefore, a suit to enforce a void contract, for the contract has been executed. But it is a proceeding, as we have seen, to enforce the provisions of a bond, dual in character, one part of which is to secure laborers and materialmen for labor upon and material furnished in the erection of the well. The city of
If the ratification of the contract made the same legal and binding it would necessarily follow that the bond in suit would also be legal and binding. The ratification would be complete and extend to the bond as an entirety.
We are cited to the case of Kansas City v. O’Connor, 82 Mo. App. 655, as showing that the contract in question could not have been validated. But in that case the contract provided among other things that the contractor should sprinkle the streets, that he was to .improve and keep in repair. The court held that the city had no power “to lay a special tax against the abutting property of the citizen for the purpose of paying for sprinkling;” and that the contract for that reason was ultra vires, an entirety, inseparable, á part void, the whole was void. But as we have seen in this case, the city had the authority to contract for the work by proper ordinance, but having failed to do so, it did not become ultra vires thereby, but was the subject- of ratification. In City of St. Louis v. Davidson, 102 Mo. 149, it is held that a party after having derived benefit.-; under a contract is estopped from denying its validity. And that was a contract which wras held to be ultra vires. The city had contracted the services of prisoners in its workhouse to a private person. This the city had no authority to do. Yet the
It is claimed by the respondent, as payment of .defendant Howard for the work done under the contract was with the understanding that he and his securities would pay off and discharge all claims for labor and material furnished, they are estopped from denying their liability. If the recitation of the resolution, that the defendant securities were present at the time when the payment was made, is to be taken as true, then their assent may be implied to what was done on that occasion. But as said resolution is at most only evidence of ratification, it would not justify us in holding that it was evidence of the presence of the securities, it being in that respect merely an ex parte statement of the city council.
Since the decision of the case in 144 Mo. 680 and in St. Louis v. Von Phul, 133 Mo. 561 and Rogers v. Gosnell, 58 Mo. 590, it is no longer an open question but what a city has the right to require such a bond as the one in question herein.
Finding no error in the action of the trial court, the cause is affirmed.
