*1 George Missouri, a Mu City, Respondent, Kansas E. McIntyre, v. Appellant. nicipal (2d) 805. S. W. Corporation, May 3, City Appeals. 1943.
Kansas Court Kemp, E. City Counselor, Cosgrove, William and John J. Assistant . City Counselor, appellant *2 Hogsett, & Trippe, Depping Houts and F. Allebach for re J. spondent. favor judgment from a
BOYER, appeals C. Defendant question for determina- main McIntyre in the sum of ten-year of Limitation Statute appeal whether the tion of action as shown applies cause *3 involved in parties A contract between is evidence. written alleged breach of this contract contends Plaintiff and suit. upon writing cause of action is founded Missouri meaning of Section Revised Statutes within ten-year applies. Appellant that the con- Statute of Limitation and damages contrary to the cause of action is tends and claims that is alleged question the contract and account breach of barred Revised Statutes because suit was withjn The years of action accrued. parties filed after the cause as to the of the action the character written differ nature and and involved evidence,' shown in petition, contract mentioned in petition and It deemed advisable in the is therefore suit. together with substance of the other fully forth, contract be set pleadings and evidence. - County, filed Court Jackson Circuit as omitting signatures,
August 25, 1939, caption and reads and follows: action'against defendant states:
“Plaintiff for his cause of herein “The now at all times defendant and mentioned organized according duly existing and to municipal corporation Missouri, having special pursuant pro- charter laws and all Plaintiff is and of Missouri. now at visions of Constitution engineer. architectural times herein mentioned was an ‘‘ signed into and a contract was made and entered On June which em- terms of defendant plaintiff defendant and plan, accepted employment, plaintiff and ployed the plaintiff, of a viaduct be con- supervise construction design, and direct connecting River Swope Blue the defendant in structed county highway leading on the end road south with a Road compensation agreed pay as Swope plaintiff Park. Defendant said for his the sum five per services cent the total amount of the actual cost the construction of said viaduct.
“Ever since was made aforesaid, said contract entered into as plaintiff -willing, has áll ready times been comply with, able to carry perform obligations out and all the imposed upon duties required of him under and of the terms of said virtue but the thereof, defendant direct violation has breached con- said ' - following tract particulars, to-wit: said
“After contract was entered plaintiff prepared maps, into all plans specifications required in connection with the construction of said maps, specifications viaduct and submitted said to' defendant, maps, said fully ap- and. proved by defendant, by its Board of Park Commissioners engineers; delayed, thereafter neglected the defendant refused proceed to advertise for bids for the construction of said viaduct viaduct, to construct permit said plaintiff per- refused to form the required remainder of him services under said con- tract, direct violation of said defendant contract caused to be place at the installed the aforesaid contract described as the location for said viaduct a fill. dirt
“Plaintiff states that had defendant not breached contract complete plaintiff permitted aforesaid and had been and allowed to the services for in said contract would have de rived profit and made a out of the services called in said $7250, in the sum of the total actual cost of reasonable said viaduct have been $165,000, would and had defendant not breached said con tract compensation would received as sum of $8250, of which profit sum his would have been Defendant paid 2, 1939, has pay $2700 the sum of and on refused to June *4 plaintiff any compensation. further
“By reason of the and part conduct on the of acts defendant/in plaintiff’s breaching aforesaid, said contract as he has the direct damaged result thereof been in sum of Pour the Thousand Five Hun- Fifty ($4550). Dollars dred
“WHEREFORE, plaintiff against in prays judgment defendant Fifty ($4550) of the sum Pour Thousand Five Hundred Dollars together in with with interest thereon from June his costs expended.’’ this behalf ’a Defendant’s amended answer admits that defendant is second special charter, municipal corporation generally with a denies but for allegations petition. the further answer states other And action, any, plaintiff’s that cause of if is barred the Statute of of upon in that the same is of that class actions which Limitations years brought within after the accrual thereof as suit must Missouri and that Revised Statutes Section years brought until more than five there- present action was not the alleged plaintiff hired as was pleads after. The answer further if purpose preparing plans of employment in his the of cost supervising a viaduct at estimated construction of and $60,000; prepared in that he said contract abandoned plans costing $125,000, of specifications for viaduct excess of the viaduct learned .of the cost and that when defendant estimated the specifications, it to continue upon refused basis; paid plain- on has employment of such defendant might obligations discharge which $2700, any tiff of and all full plea of contained a owing plaintiff. The answer also have been architects, employment such long that in the of established custom any the proponent understood that plaintiff’s case, as in it was project requiring preparation any the architect was en-
free to abandon the same at time compensation only part com- titled for such work pleted at the time such abandonment. day denial, on the reply general
Plaintiff of a the nature .filed his strike from the answer trial motion for an order to filed that, a written plea plaintiff’s reason suit of limitation parties not controlled and is between to strike 1939; moved the court Revised Statutes Missouri also ruling' custom. Final plea an established from answer evidence, until at on the motion was reserved the close of plea and the of limita- part sustained in which time motion was “I stricken, and the court said: tion answer was contained a contract and not suit that this is suit have concluded ” contract. tort for a tortuous breach of the the court proceeded The trial at the close of all evidence de- nature of a peremptory refused defendant’s instruction in the evidence, to all tendered murrer all defendant’s refused submitting or not question one as to whether except instructions there was a. custom as that The case pleaded such answer. jurors signed a verdict upon plaintiff’s submitted instruction and ten “We, undersigned jurors, reading as find issues follows:. ” damages and do assess his parties both in- assignments points briefed by error arising question the demurrer clude the limitation striking plea the court in of limitation evidence and action of refusing' ruling giving the court answer, from instructions. to as put
Plaintiff in evidence contract referred testified signatures, which, omitting reads as follows : Exhibit
“CONTRACT. AGREEMENT, triplicate, entered into in “THIS made and acting Missouri, municipal corporation, City, Kansas between through its Board of Park Commissions, party part, of the first here- City, George engi- inafter called the McIntyre, E. architectural City, Missouri, neer of County, Jackson party Kansas the second of part, Engineer. hereinafter the called
“WITNESSETH:- parties hereto, “That consideration of the mutual covenants agree herein contained as follows: ‘‘ City hereby Engi- Section 1. The employs Engineer and the accepts hereby employment neer said upon the conditions terms and herein contained. engineer
“Section 2. design, The plan, supervise shall direct and of a City, acting construction viaduct to be 'by the constructed through connecting its Board of Park Commissioners, Swope Park the Blue leading River Road with County Highway road the south end of Swope prepare said and shall maps, all specifications required in connection with work and said letting therefor, of the contract or in addition, contracts Engineer prepare building shall such forms, plans, advertise- contract may ments and notices as required by to bidders be of Park said Board Engineer. Commissioners of construction said viaduct shall carried on agencies direction administrative of the designated by of City City jurisdiction Charter premises, Engineer Department City and the for the Park of the general supervisory shall have control of construction of said viaduct. In
“Section 3. consideration of the of performance all of said Engineer, City him, shall pay Engineer services as compensation services, shall receive full all such sum per cent of the total amount the actual cost of the construc- out viaduct, payable tion of said of the Park and Improve- Boulevard Fund, issue, paid installments, Bond 4th to be in three as ment follows: “ (a) per upon Two cent of the total cost of said work exe- upon delivery cution this the estimated cost $60,000. “(b) per awarding general Two cent of the contract for the construction of said viaduct based estimated cost $60,000. remaining unpaid per
“(e) The balance said five cent of cost of said work of construction said viaduct shall be paid total acceptance by City of the entire completion time work of viaduct. construction WHEREOF, is, day
“IN WITNESS This on this 8th Missouri, 1932, duly City, Kansas June, executed its Board by George E. McIntyre, parties Park Commissioners hereto.” having question properly raised to the contract is no There signed behalf of the duly authorized and Board'.of *6 secretary. Commissioners, through, president acting Park signing the contract testimony is after that substance receiyed or the day on the same first thereunder payment he $1200; proceeded then to make day that he following the sum of in superin- bridge doing conferred with the drawings so engineer, consulting park and an additional parks, tendent confer with employed by plain- engineer had been Board who many times with said his that he conferred work; to check tiff and in reference of the Park Board representatives and with consultant time the contract bridge required; that at the that type of was to the bridge roadway other features signed width was finally he was determined; several conferences that after had not design a parks bridge a' with by superintendent of instructed fifty-foot with, orna- roadway on each six-foot sidewalk side for guardrails; prepared plans specifications that he such mental consulting engineer as approved were evi- which structure September 1932. the Board under date a letter to denced represented Exhibits 3 to for the structure were The plans They July 14, 1932. bear the date These exhibits inclusive. says July 1932. Plaintiff resolution of the Board approved specifications for the structure shown he to the Board also tendered being in evidence as Exhibit No. offered plans, letting 10; prepared had forms for a contract and for that he also nothing contractors; that done notice was there- advertisement and members of the Board at various times he different after; that saw they proceed with the work inquired when wanted ready; given any he not they were not that that informed time; except was not available at that reason that positive bridge tell not be built they him the could because of that did always cost; willing ready, perform that he was and able to excessive city he never that the and that had aban- learned under paper maga- when he read some doned sometime until projects as one of the WPA zine that the work listed in Kansas anyone to that he had never been City; previous time told city representing project had abandoned this any his because the excessive cost or other reason. July developed plain- that on on cross-examination It letter to the Board of Commissioners in which tiff addressed bridge he had made estimates the cost of the he stated that careful according July submitted on estimates improvement approximately cost of the would be showed my that "under the terms of $125,000, and further stated per of two payment I was to receive initial cent of the esti- (2%) showing submitting I herewith mated cost. am therefore statement Accompanying I have drawn and balance due.” amount should professional per services the letter was a statement of two cent showing estimated cost of $125,000, $1200 credit bal- recognized This any way anee 'due bill was not or paid time, repeated at the but made demands for further pay- December, 1932, ments and stated that he received an additional City Manager. McElroy, from Mr. Other evidence shows *7 that this was of and that $1000, sum payments further 1933, on February 24, $300, were made in the amount and on March 1933, in $200, making payments the sum of total admitted have been received by plaintiff September, From sum 1934, plaintiff continuously December, engaged until was immediately work in the State of Texas, and thereafter to Jef- went City, ferson continuously engaged where he was engi- as a structural October, neer until 1938. Plaintiff stated that he had never called on City job back the Kansas and if he had been he could taken care of it. He also said that it have taken from would six bridge complete nine months to called for in the he plans which presented. only other witness for the was the secretary Park secretary
Board of He Commissioners. from 1931 until 1940. He testified in had part approximately $60,000 that Board spend bridge; previous on the had that a Board recommended that amount; money that at the time of the contract with had not been realized bonds; plaintiff presented from sale that when plans his he engineering the Board was department; referred that the Board did nothing not advertise for bids and further was they $60,000 done at the time because didn’t have over to spend; that there was considerable discussion about the excessive cost plan viaduct he plaintiff’s was informed that not May 25, 1939, available. plaintiff, through attorney, On his application filed with the for an additional Board allowance which application denied June and the secretary stated that so far as he knew that was the first official taken action the Board they any not pay plaintiff that would more under the contract. On advisory cross-examination of this it was shown that an witness com- expenditure park approximately mittee for the had allocated funds $75,000 bridge including question, approaches,, for the and that attempted the Park nearly Board was so advised and to follow as practicable expenditures; the amount allocated committee bridge presented plans that when he was referred engineer Board to determine the cost of the what bridge be, engineer would reported thereafter cost would $146>,000; about that nothing further was done Board under plans presented plaintiff, adopted and later the Board a culvert urged by form Mr. Cromwell. This witness further stated that he previously deposition had testified in his that in the Fall of the Board decided to the construction and Mc- withhold informed Mr. work, with the construction Intyre they proceed not could McIntyre true, in- and that answer was witness said that go they aban- he knew had they on, not and that
formed could it; that witness McIntyre in the Fall personally informed Mr. doned bridge think called for opinion he did not that in his of 1932 ever be built. in his would formerly mayor Kansas Cromwell, City,
Mr. who was after a bond issue Park Board testified that member moneys for the viaduct in authorized certain allocated had been were $75,000 issue at question. He said: “It was voted in the bond generally it was viaduct and approaches,” take care $75,000 spent to be of the Board that there was understood members McIntyre of the limita- had for that that Mr. been advised purpose; many, “the had been amount and that amount stated tion this ’ presented to the time were many ’; times that at McIntyre Board that did not inform the Mr. approved, Board and sub- Bridge $60,000, and that no were would cost 'over they approved; they sub- were mitted at that time and *8 to engineer for the Board park superintendent and to mitted engineer Board that cost, reported for the report back the and $145,000 $150,000 anywhere to to build the be from the cost would according by McIntyre; that it was to the- submitted viaduct they go not ahead with definitely decided the Board that would ‘‘Q. McIntyre When that was so informed. did improvement and street, you tell him? A. I met him several times on different it, and going and he would ask me we were to do about places, what Q. very definitely going ahead. I him that' we were would tell holding waiting you up and for more You didn’t tell him were ’’ money No, ? A. had made our decision. we con engineer at the time Lewis, Mr. for the Board issue that cer in reference bond plaintiff, tract with testified to money departments, that city tain was the various allocated question; $75,000 of the viaduct in allocated the construction a that estimated the cost of construction of viaduct he called so informed plaintiff $146,000, presented go Board; impossible ahead, “and made it that the amount everyone by the Board and concerned.” it was so considered consulting testimony of also offered an architect Defendant doing practice effect that it was the custom engineer to the compensation on a cent of the per when based work for they receive project which never built that would cost total only actually performed. Plaintiff in re- for the testified pay work on his question evidence buttal, hypothetical in answer to any case, practice. never heard of such custom or he had overruling that the court erred in demurrer Appellant contends five-year plea out of the striking defendant’s to the evidence Respondent says: Statute of Limitations. “This a suit to enforce promise ten-year in writing pay and’ Statute of Limi- applicable.” tations is Part of Revised Section Statutes providing what actions shall be years, commenced within ten inis First, words: upon any these an action writing, whether or sealed unsealed, money or property;”. Part Section 1939, providing Revised Statutes what actions be'brought shall years, within five “First, these contains words: all actions con- tracts, obligations or liabilities, express implied, men- except those 1013,”. in- tioned applies Which section case must be action, determined nature nature necessarily depends action interpretation petition underlying contract. petition The employment identifies-a certain contract of dated June 8, 1932, whereby plaintiff engaged .plan, design, direct and supervise the a viaduct, construction of was to re- plaintiff cent, ceive as compensation for his services five per the sum of total amount of the actual cost construction said viaduct. alleges then prepared maps, plans spec- viaduct, required ifications they for the construction of the approved by defendant, and delayed, “thereafter the defendant neglected and refused to proceed to advertise for bids for the con- struction of viaduct, said viaduct or to construct said and refused to permit plaintiff to perform required remainder of the services of him Also, “plaintiff said contract.” de- that had states fendant not breached said contract as aforesaid had permitted complete and allowed to for in services contract would have profit derived made a out of the services called for $750.” in said the sum of are There allegations other as to what the total cost of the structure would been; that plaintiff, received the sum of $2700, and that defendant had *9 more, to pay refused following: “By and then the the reason of acts and breaching conduct on the part plain- of the defendant in tiff’s said contract as aforesaid he has the direct result thereof damaged been in Fifty the of sum Four Thousand Five Hundred ($4550).” Dollars provides
The contract payment Section 3'thereof for the of com- pensation (c) (a)', (b), paragraphs installments as of said special significance section. are paragraphs These of read as follows: “ (a) per upon Two of total cent the cost of work the execution said delivery upon of this of $50,000. the estimated cost based
“(b) upon per general awarding Two cent the of contract the for the of of upon construction said viaduct based the estimated cost $60,000.
1188 remaining of the
“(c) unpaid per The balance said five cent of paid total cost of said work of construction of viaduct shall be completion acceptance by City of the entire the time of the the work of of said viaduct.” construction foregoing’ allegations provi- the petition In view of the of ‘‘ upon is an action of the can it be maintained this sions contract money”? any writing According for the of the author- payment upon subject, appear the be such ities cited and reviewed does alleged an arising' upon an but falls in the class of cases action, legal im- wrongful of affords a basis for an breach contract which damages petition The assumpsit pay caused the breach. plied charges a breach of the contract and that “has expressly “his damaged,” jury direct result thereof been assessed damages,” give color to true intendment of all of which proceeding. Moreover, provisions pleader and the nature of the money all conditional. There payment for the of are of contract money. per of an esti- unqualified promise pay Two cent is no upon execution the contract $60,000 payable of of mated cost $60,000 cost of per cent paid. $1200 was then Two of estimated awarding general for the of the contract upon to be paid No bids for construction of of the construction viaduct. The re- no ever awarded. called for and contract was viaduct were-ever total cost of the work was per of the balance cent maining city. The acceptance by completion at the time paid be foregoing All is shown statements never of the viaduct was built. promises The by plaintiff’s conditional evidence. (b) (c) paragraphs set forth payment obligations part of defendant on the never became absolute fixed, promise based no never became because liability therefor upon contingency as such until upon condition can enforced promise on a has The suit not founded happened. which it depends con- of the arising written money from words payment for the supra. meaning tract of Section within mainly decision foregoing statements are Parker-Washington Dennison, 267 Mo. Co. v. the ease banc, on page en opinion 1041. The of the court W. S. following: Report, State contains the any writing an ‘action bring “In order to 1888), appear it must sec. (R. S. money property’ or property or sued the cause of action the statement of language writing, given of the paid for is to be promised only upon extrinsic proof does not arise promise such statute, nothing requirements has facts. That else meets review.” uniformly has been under held whenever it *10 following page: And on the
1189 tortiously prevented happening “The fact defendants obligations the contingency upon which their contractual would have arisen, a be held to make contract for them to the contrary cannot agreement.. terms in which in expressed contract was their written wrongful legal Such im- conduct would constitute basis for an a plied assumpsit part damages thereby, on pay their caused but to it promise pay, could alter the terms of the used conditional ” (cid:127) in the written contract. case,
Under the contract in this order to maintain for an action on writing money, payment have been would necessary to plead prove upon the fulfillment conditions which payment was be made. If the contract for the construction awarded, had viaduct if viaduct had been built agreed and accepted, and pay defendant had refused to the amount on paid contingencies, then could maintained an action on writing money according promises contract, contained in the could have recovered amount shown to be pleading, due. But evi- give plaintiff’s dence in this case action the character of a suit damages for a breach of the is not contract. an ab- .It liability solute and writing pay fixed defendant evidenced five-year money, applies. Statutes of Limitations Respondent distinguish seeks the decision the Parker-Wash ington controlling case and that it contends is not the facts case; the pending- and further relies announced in rule dissenting opinion Parker-Washington Respondent in the case. further contends that Knisely Leathe, the decision the case v. 256 Mo. 341, holding ten-year 166 W. applied S. that the statute case, point here. facts. should control The case is not in .the paid definitely amount to be fixed Events in the contract. consummate, promise pay liability rendered the became ab agreement solute under the terms suit filed. The before Knisely ease opinion Parker-Washington was cited in the case given concurring opinion full consideration in where its dis tinguishing given features are enumerated. Consideration has been argument counsel, to all and the conclusion been reached has Parker-Washington that the decision case later decisions confirming it disposition pending control Her case. [Cf. Tabor, weck Rhodes, 29, 32, (2d) 32; Lively v. 327 Mo. 34 S. v. W. 341 352, 360, (2d) 62; Co., Mo. 107 W. Mitchell v. Health S. Culture 349 (2d) 233; Kurn, Mo. S. W. Baron v. 349 Mo. L., 310; Assn., S. (2d) W. Farm Home & Mo. Bisesi v. & S. ] App. 897, (2d) 902, 78 W. S. 871. Mis- Plaintiff’s ease was barred Revised Statutes years more than souri the cause of action accrued signed this before suit -was The contract' in case was June filed. *11 1190 preparation actually plaintiff performed Í932. The work by July to done appears all have been and nothing, further ivas done According
1932. to evidence he he building viaduct, city relative to the of the claims some- city actually project until had abandoned did not know the August prior thereto years 1939. time 1939. was filed Five Suit plaintiff either knew August 25, 1934, that date and before diligence that of reasonable known exercise could have planned. he had definitely project which city had abandoned put him on notice. to years two was sufficient Inaction for more than to positive is himself, evidence, except All the accord- of the viaduct learning the cost the effect that estimated it, ing not to and that plaintiff’s plans to Board decided build definitely not know informed fact. If did of that to years’ time fact, asserts, he he had over two within which as reasonable dili- it, ascertain and he will be to have known what held discovery were gence inquiry The means would have revealed. charged knowledge of the fact power, he be with should breach, any, city that the and that if proceed, declined five-year beginning of the contract had before the long- occurred period which would bar an action the breach. Bragg, Mo. Shelby County
A v. 135 pronouncement of the court in 291, 300, appropriate is here: and can not be of limitation are favored the law
“Statutes brings strictly party seeking do within avoided unless the so himself of the statute seeking some ‘A avoid the bar exception. party diligence to he aver show that used due account of fraud'must discovery he power, in his will it, detect and if he had the means ’ 141; S. Carpenter, 101 U. be to have it. v. known held [Wood Allen, Hamblin, Calcote, 434; Buckner Miss. 8 v. 28 Nudd v. 130.] where party exception A to the statute can not avail of this himself power discovering within his and were the means of truth were the. McGlathry, not Me. used. v. [Cole 131.] conclusions, these, Carpenter, supra, among “In other Wood v. ‘ survey Concealment drawn after careful authorities: enough. trick or contriv- silence There must be some mere is inquiry. There must suspicion prevent ance intended to exclude knowledge same diligence; are the be reasonable the means ” knowledge thing in effect itself.’ as Kurn, v. applied Baron foregoing approval is cited with (2d) 349 Mo. S. W. 310. any, time action, Plaintiff’s within reasonable cause if accrued -contract, anything
after further defendant refused do years prior filing suit. The accrued more than five The learned of limitation. plead entitled to make defense overruling denying privilege trial court was in error tbe Plaintiff not entitled recover. demurrer to tbe evidence. recommends. judgment Tbe should reversed. The Commissioner so Sperry, C., concurs. C., adopted foregoing opinion
PER Boyer, CURIAM:—The judgment is reversed. All concur. opinion of the court. The *12 Appellant. W. 172 S. Adams, Respondent, LeBow, Vivian v. Paul 874. (2d) May 24, Appeals. City 1943.
Kansas Court