62 Mo. App. 352 | Mo. Ct. App. | 1895
The plaintiff applied for an injunction to restrain the defendants, Trestrail and the city of Westport, from curbing McGee ¡street, between Thirty-first and Thirty-third streets.
It appears that a city ordinance was passed and approved June 15, 1893, directing the work to be done. By section 3, it was provided that, “the work shall be completed within thirty days from the time a contract therefor binds and takes effect, etc.” That afterward, bn the seventeenth day of June, 1893, the city and defendant, Trestrail, entered into a written contract for doing the work and in which it was stipulated that the work should be completed in thirty days after the contract went into effect. The work of laying the curbing was not begun until October 14, 1893, which was nearly ninety days after the making of the contract for the same. After hearing of the case, the court below decreed that the preliminary injunction which had been granted be made perpetual and from this decree defendants have appealed.
The decisive question presented by the appeal for
It is the well settled law of this státe that proceedings by municipal corporations to compel the owners of land abutting on a street to pay for improvements in front thereof, are in invitum, and a substantial performance of all the conditions imposed is necessary in order to fasten a lien thereon. The owner of aHax bill issued for local improvements, in order to recover, is not required to show a strict and literal compliance with all the provisions of the ordinances relating thereto. Cole v. Skrainka, 105 Mo. 309; Steffen v. Fox, — Mo. — (28 S. W. Rep. 70.) The ability of a city to create a lien on the property of' the abutting landowners, for street improvements made in pursuance of the provisions of its ordinances authorizing the same, is not founded on any preexisting right, but rests exclusively on a substantial adherence to the method prescribed by such ordinances. Many cases illustrative of this doctrine are referred to in Kiley v. Oppenheimer, 55 Mo. 374; also see Leach v. Cowgill, 60 Mo. 316.
In the. present case it does not appear that there was a substantial compliance with the contract within the time it required. The work, as has already been stated, should have been completed within thirty days after the making of the contract, or by July 17, but, instead of that, it was not commenced until three months later, or on October 17. No- ordinance was passed by the board of aldermen to extend or revive the contract. If the contractor could defer performance for three months, why not for three years, or for any other length of time!
Oases may, and often do, arise where the bid of the contractor is below what the work can be done for, without subjecting him to loss. If he finds himself in
The city charter, section 1592, Revised Statutes, provides that the board of aldermen shall have power by ordinance to levy and collect a special tax on the owner or occupier of any property on any street, for the purpose of ■ curbing the same in front of such property, and when the work shall be ordered by the board of aldermen, it shall be done in the manner, and with the materials designated in the ordinance. Pursuant to this charter provision, the ordinance authorizing the contract in question was passed. The third section of this ordinance, already quoted, was in the-nature of a proviso. It operated as a limitation upon the authority of officers of the city, who were ordered to contract for the work. The ordinance conferred no express or implied authority to make a contract for the work, which was not to be completed within thirty days after it took effect. Time is, therefore, of the-very essence of the ordinance and the contract made in conformity to it. It was no less than a statute of the city. The rules is that, when a statute provide for
But it is contended that the law has been otherwise declared in Carlin v. Cavender, 56 Mo. 286. A careful examination of that case will show this contention is not well founded. It will be seen that in that case, where the work was let out and performed, there was a general ordinance prescribing the size and character of the materials to be used. The ordinance did' not, as here, prescribe or fix a time in which the work was to be done. But it may be inferred that the contract did prescribe such time. In answer to the object tion that the ordinance did not prescribe or fix a time for doing the work, the court said: “So far as the time is' concerned in which the work was to be done, we think the ordinance sufficiently explicit. The engineer is authorized and empowered to cause the work to be done. This conferred on him full authority. By no fair construction are there any requirements fixing the precise day when the work .should be commenced, or within what period it should be finished. * * * There was obviously no merit in the point thát the work was not completed within the time limited by the contract. There is nothing to show that time was of the essence of the contract.”
It thus appears that the work there was done under a general ordinance that prescribed no time for its completion, but that in the present case, the ordinance authorizing the improvement, fixed a period for its completion. There is an obvious distinction and
In French v. Wallace, 13 Wall. 506, it is said: “When the requisitions prescribed are intended for the protection of the citizen and to prevent a sacrifice of his property, and by disregard of which his rights might be and generally would be injuriously affected (italics ours), they are not directory, but mandatory. They must be followed or the acts are invalid. The power of the officer in all such cases is limited by the measure and conditions prescribed for its exercise.” Accordingly, we are of the opinion that the proviso in the ordinance, requiring the completion of theimprovement within a prescribed time, was mandatory, and that a compliance with it was a condition precedent to the right of the contractor to any lawful demand against the abutting landowner.
The contractor bound himself to complete the work within thirty days from the taking effect of his contract. It was no excuse for his default that the city had not graded the street, so that he could accomplish performance within the contract period. The rule is that where a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident or inevitable necessity, because he might have provided against it by his contract. Beater v. Coal Co., 56 Mo. App. 221; Brinkenhoff v. Elliott, 43 Mo. App. 186; Fulkerson v. Eads, 19 Mo. App. 620. It may be that, in an action by the city against the contractor on a contract of the kind, for nonperformance, such a
. According to the principles established by the precedents in this state, this action for an injunction was properly brought. State v. Phillips, 97 Mo. 339; Bayha v. Taylor, 36 Mo. App. 434.
It inevitably follows from the foregoing considerations that the decree of the circuit court will be affirmed.