47 Mo. App. 105 | Mo. Ct. App. | 1891
In November, 1887, the City of Kansas by ordinance provided, for the construction of an iron bridge or viaduct from the top of the bluff at Fourth street passing west across and over the railroad tracks below to Mill street, — said space from the bluff to said Mill street being designated as the extension of Fourth street. Murray contracted with the city for the construction of the stone piers which were to support the
I. On this appeal the only point made by the city counselor is, that, under the pleadings and evidence, plaintiff is not entitled to recover. To sustain this contention, it is claimed, first, that the contract between the city and Murray was ultra vires, in that it provided for the erection of a viaduct upon and over pri-* vate property. That the city had general authority Nk construct a viaduct is not questioned, but it is said that, because this was to be built at a point where the city had not then legally acquired the right of way, the contract was outside the powers of the municipal corporation, and, therefore, void. In our opinion defendant’s counsel has stated this proposition too strongly; He assumes in his argument and brief that plaintiff contracted with the city-to do this work, knowing that the same was to be erected on private property ; and, were
II. Several months, however, after the city was thus in default on said contract, the city engineer