Heman v. Gerardi

96 Mo. App. 231 | Mo. Ct. App. | 1902

GOODE, J.

Appellant’s contention is that he is. entitled to a, judgment for the amount of three special taxbills issued to him by the city of St. Louis for laying a granitoid pavement around the property at the southeast corner of Grand avenue and Olive street. He raises this contention on the entire evidence in the case, for he requested no declarations of law and none was given or refused; so the question is whether facts were-shown without dispute which support his claim.

Several defenses were pleaded, one of which was-, that the pavement was not constructed according to-specifications prescribed by the city ordinances and by the contract with appellant for the work.

The specification said to have been violated was-one requiring the work to be composed of a granitoid surface four inches thick laid on a bed of cinders eight inches thick.

After carefully reading the testimony bearing on that issue, the court are of the opinion that they can not say there was no evidence to prove the walk was improperly laid; that is, materially fell short of the above dimensions. Two witnesses swore to making holes in it at five or six different places and measuring the thickness of the layers of granitoid and cinders, and at none of the openings did the measurement show compliance with the specifications, but in some instances at least, material deviations. There was testimony the other way which tended to prove substantial performance according to the ordinances and that the pavement was as nearly of the uniform thickness prescribed for both the foundation and the granitoid, as the unevenness and varying firmness of the ground below would permit, it being stated that tamping the cinders necessarily causes them to form into a bed thicker over soft spots and depressions in the soil than over hard parte.

Substantial performance of the contract is what the law requires in the construction of such improvements; not exact compliance with the specifications in all circumstances. Cole v. Skrainka, 37 Mo. App. (St. L.) 427, 105 Mo. 303. The issue of whether this requirement was observed was one of disputed facts to be decided by the judge who tried the cause. No showing is made that he disposed of the matter on an erroneous legal theory, and having found testimony in the record to prove there was a failure in substantial respects to do the work as contracted, we can not substitute what might be our own estimate of its weight for his. Smith v. Zimmerman, 51 Mo. App. (K. C.) 519. As this action is on the taxbills and not on a quantum meruit, the result below must be upheld for the foregoing reasons [Traders Bank v. Payne, 31 Mo. App. (K. C.) 572; Meyer v. Wright, 19 Mo. App. (K. C.) 283; Egerman v. Cemetery Ass’n, 61 Mo. 498], and it is unnecessary to examine the sufficiency of the other defenses or whether they were made good by proof.

The judgment is affirmed.

Bland, P. J., and Barclay, J., concur.