139 Mo. App. 157 | Mo. Ct. App. | 1909
Action to enforce the lien of two special taxbills issued in part payment of the cost of certain improvements made on Eighth street in the city of St. Joseph. Each bill was made the subject of a count in the petition; the cause was heard by the court without a jury; judgment was rendered for plaintiff on each count for the full amount demanded, with interest, and defendant appealed.
It is conceded that the taxbills, being regular in form, are sufficient to make out a prima facie case in favor of plaintiff, but their validity is attacked on several grounds in the answer and proof adduced by defendant. The improvement in question was made pursuant to a special ordinance passed by the city council on April 12, 1900, and entitled: “An ordinance to provide for the subgrading, paving, curbing, guttering and
“9. The first party (the contractor) shall not be entitled to any claim for damages for any hindrance or delay from any cause whatever, in the progress of the work or any portion thereof; but such hindrance may entitle said first party to an extension of the time for completing this contract sufficient to compensate for the detention, the same to be determined by the city engineer, provided he shall have immediate notice in writing of the cause of detention.”
“10. The work embraced in this contract shall be commenced within one week after written notice so to do shall have been given to the contractor by the city engineer, carried on regularly and uninterruptedly with such force of men as to insure its full completion within three months thereafter; the time of beginning, rate of progress, and time of completion being essential conditions of this contract.”
Under the head of “General Stipulations” is this provision: “If said work shall not be begun when, where, and as ordered by the city engineer, or if the rate at which said work shall be performed shall not, in the judgment of the city engineer, be such as to insure its
On the 5th of December, 1900, the engineer, for the first time, notified plaintiff in writing “to commence work within seven days upon the contract between you and the city of St. Joseph for paving Eighth street from Mitchell avenue to Olive street (Ordinance No. 2619) and to finish the same according to contract.” December 18, 1900, the city council passed a special ordinance (No. 2935) extending the time for the completion of the work for a period of five months and on April 15, 1901, passed another ordinance further extending the time for a period of four months. The work was completed within the period prescribed in the last ordinance mentioned, was accepted by the city, and the taxbills in payment of the cost thereof, were issued October 2, 1901, and delivered to plaintiff.
The long delay in the performance of the contract after it was made and approved by the city is the foundation of the attack against the validity of the proceedings. To free himself from the imputation of fault on account of this delay, plaintiff introduced evidence which tended to show that very shortly after the contract was ratified, he began its performance by making brick, taking out guttering, resetting the curb and breaking rock for foundation, but could not proceed beyond the preparatory stage because of the failure of the city engineer to lay out the work and set stakes for his guidj anee. Further, it was shown that plaintiff was directed by the city engineer not to proceed with the paving of
Defendant’s evidence tended to show that sixty days afforded a reasonable time for doing the work, while that of plaintiff was to the effect that three months would have been required had plaintiff been given the opportunity of prosecuting the work without hindrance from the city.
Since the evidence introduced by plaintiff on these controverted issues of fact is substantial, no reason exists for interference on our part with the findings of the trial court ou which, it is evident, the judgment for plaintiff was founded. As far as it may be materia], we shall assume as established the fact that plaintiff in no wise was remiss in the performance of his contract but was retarded solely by the acts of the city and, from this standpoint, shall consider the questions of
It is argued that though the ordinance which authorized the improvement is silent on the subject of a time limit, the fact that it specifically referred to specifications on file to which, at the time, a form of contract was attached, made the stipulations contained in that form which related to the time in which the work was to be begun and completed a part of the ordinance itself. Consequently, that the ordinance should be held to have made time of the essence of the proceedings and should be pronounced void because it attempted to delegate to the engineer the purely legislative function of fixing the time when the contractor should begin work. In support of this argument, we are cited to Barber Asphalt Co. v. Ullman, 137 Mo. 543; Galbraith v. Newton, 30 Mo. App. 350; Roth v. Hax, 68 Mo. App. 283; McQuiddy v. Brannock, 70 Mo. App. 535. In these cases, the rule is declared that where the ordinance providing for the improvement omits specific mention of the details thereof and refers to plans and specifications on file for information respecting such details, the plans and specifications actually on file at the designated place become a part of the ordinance to the same extent and with the sanie effect as though they had been literally copied therein. But it does not follow from this rule that the adoption in this manner, of specifications, should be treated as the incorporation in the ordinance of such extrinsic matter as a form of contract from the mere fact that such form has been attached to the specifications. Had the city intended to embody in the ordinance the stipulations and conditions appearing in such form of contract, it hardly would have contented itself with á reference only to the specifications, but would have referred also to the form of contract on file. The attachment of a form of contract amounted to nothing more than the expression by the
As in that case, the contract in the present instance contemplates and makes provision for the contingency of excusable delay in the completion of the improvement, and we must hold that under both ordinance and contract, plaintiff had a reasonable time in which to do the work; and, further, that the question of whether he completed the improvement within a reasonable time is one of fact to be solved by the trier of fact in the light of the surrounding circumstances. [Hilgert v. Paving Co., supra; Lapsley v. Howard, 119 Mo. 489; State v. Harrison, 53 Mo. App. 346.] The parties themselves stipulated in the contract that a period of three months from the reception by plaintiff from the engineer of notice to proceed Avould afford a reasonable time. The trial court found this estimate to be approximately correct and the finding, we think, is supported by evidence. In the absence of any showing that the delays, occasioned by the • failure of the engineer to set grade stakes and of the street railway company to replace the rails of its tracks, were the result of a collusive understanding or agreement to which the contractor was a party, the time consumed by such delays should not be computed as time wasted by the contractor. [Curtice v. Schmidt, supra.] It clearly appears that he was ready and willing to proceed with the work immediately on the ratification of the contract and would have been able to complete it in the time specified but for the fault of the city. It would be extremely unjust to punish him, not for any breach on his part of any contractual obligation or duty, but for the neglect of the other party to the contract.
What we have said necessarily leads to the conclusion that the taxbills should not be held invalid on the ground that the contract attempted to delegate to the city engineer the exercise of the legislative power of .prescribing a time for the completion of the work.
We do not find in the record that the provisions of this stipulation (No. 10, under head of Duties and Responsibilities) appeared anywhere in the specifications on file to which the ordinance authorizing the improvement referred and, therefore, as we have shown, the ordinance did not, by reference to the specifications, either make time of the essence of the contract or attempt to delegate a legislative function to the city engineer.
The trial court properly held the taxbills valid.
Point is made that it was improper to include in the assessment the cost of the work performed under the ordinance and contract on the sidewalks, curbing ■and guttering, for the reason that such work was in the nature of repairs and, as such, was chargeable to the city. We had this precise question before us in the
The judgment is affirmed.