185 Mo. 534 | Mo. | 1904
This cause is before this court upon an appeal from a decree by the Jackson county circuit .court, annulling and setting aside a certain taxbill issued by Kansas City for street improvement.
The petition fully stated the case, and the answer clearly indicates the line of defense to this action, and they are here reproduced.
The petition is:
“Plaintiffs for cause of action state that the defendant Kansas City is a municipal corporation, and that the defendant James Cowgill is city treasurer of Kansas City, Missouri.
“Plaintiffs state that in 1895 and for a long time prior thereto and ever since that time, they have been the owners and in possession of lot one, block nine, Fairmount Park, an addition to Kansas City, Missouri, said property being on West Twenty-fourth street, be
“That said city afterwards passed an ordinance, No. 6591, entitled, ‘An ordinance to confirm contract with Kansas City Macadamizing Company for the macadamizing of Twenty-fourth street from Southwest boulevard to Fairmount avenue,’ that said ordinance was duly approved by the mayor of Kansas City on the 8th day of August, 1895, and went into full force and effect and approved said contract. That on and after' said 8th day of August, 1895, said contract was in full force and effect and binding on bath parties thereto. And that it was the duty of said contracting company to commence work on said street on or before the 18th day of August, 1895, and to complete the macadamizing of said street on or before the 6th day of November, 1895.
“Plaintiffs say that the said contracting company failed to macadamize said street according to the terms of the contract; that it used inferior material to that provided for in the contract, and failed to lay the macadam the thickness called for in said contract,; and failed to construct the macadam pavement in the manner provided for by said contract, all to the great loss of the plaintiffs.
“Plaintiffs say that by reason of the breach of said . contract, as above set forth, said contracting company and its assigns lost all rights to compensation for said work under said contract.
“Plaintiffs .say that notwithstanding said street was not paved with macadam in the time and manner, and with the material provided for by said contract, the defendant Kansas City and its agents, officers and servants, though well knowing said company had . violated. said contract and was not entitled to any taxbill for said work, did, in violation of plaintiffs’ rights, on or about the 14th day of February, 1896, issue a taxbill ag'ainst the plaintiffs’ said property for macadamizing said Twenty-fourth street under said
“Plaintiffs say-that they have a business block on their said lot, and that the constant use of said Twenty-fourth street by them and their tenants is necessary .to the enjoyment and full use of said property, and that by failure of said contracting company to complete the macadamizing of said street within the time agreed to in said contract and for many months after it should have been completed under the terms of the contract, plaintiffs and their tenants suffered great inconvenience and loss of time and money.
“Plaintiffs say that the defendant Kansas City keeps a set of books known as the ‘Special Tax Records, ’ where all unpaid special taxes are recorded, and the same by law is made a lien on all property covered by said taxbills, and that the said books are in the charge of and under the control of James Cowgill, as city treasurer of Kansas City, and that the defendant Kansas City, in violation of plaintiffs’ rights, knowing full well- that no tax should have been issued against the plaintiffs ’ said property for the macadamizing of said Twenty-fourth street as aforesaid, did, on or about the 14th day of February, 1896, issue a tax-bill against plaintiff’s said property for macadamizing said Twenty-fourth street, to the amount of one hundred and ninety-seven dollars and sixty-nine cents, and caused a record of the same to be made on the Special Tax Record of said city, thereby making and creating a cloud on the title of plaintiffs ’ said real estate, which cloud prevents plaintiffs from selling, disposing of or incumbering their said lot. Plaintiffs say that the defendants J. W. Merrill and Duston Adams are the assignees and owners of said taxbill, and the same is. under their control and in their possession.
“Wherefore, the premises considered, the plaintiffs pray the court to decree said taxbill null and void and no lien on plaintiffs ’ said lot; and that the defend
Tbe answer of defendants is as follows:
“Now come tbe defendants to tbe above-entitled action and for their amended answer to plaintiffs’ petition deny each and every allegation thereof, not hereinafter specifically admitted.
“Defendants admit tbat plaintiffs are tbe owners of tbe property described in plaintiffs’ petition, and tbat tbe mayor and common council of Kansas _ City passed an ordinance, number 6558, entitled, ‘An ordinance to pave Twenty-fourth street from Southwest boulevard to Pairmount avenue,’ approved July 12,-1895, which provided for macadamizing Twenty-fourth street between tbe points above named, and in front of tbe plaintiffs’ property. Tbat in pursuance of said ordinance, Kansas City, on tbe 16th day of July, 1895, entered into a written contract witb Kansas City Macadamizing Company to pave Twenty-fourth street under said ordinance; defendants deny tbat tbe provision in said contract witb reference to tbe completion of said work is correctly .set out in said petition, but allege tbat tbe quotation from said contract as contained in plaintiffs ’ petition is not complete and stops in tbe middle of a sentence; tbat tbe whole of said sentence and -paragraph relating to tbe time of tbe
‘ ‘ That defendants admit that said city afterwards passed ordinance number 6591, entitled, ‘An ordinance to confirm contract with Kansas City Macadamizing Company for the macadamizing of Twenty-fourth street from Southwest boulevard to Fairmount avenue;’ that said ordinance was duly approved by said mayor of Kansas City, Missouri, on the 8th day of August, 1895.
“Defendants admit that Kansas City, on or about the 14th day of February, 1896, issued a taxbill against plaintiffs’ said property, which bill amounted to one hundred and ninety-seven dollars and sixty-nine cents, and admits that said special taxbill was placed upon the Special Taxbill Record in the office of the city engineer and the city treasurer, and still remains on said book as a charge against the property of plaintiffs.
“Defendants deny each and every other allegation contained in said petition.
“Defendants allege that said Kansas City Macadamizing Company proceeded in accordance with said contract to do the work provided for by the same, and
“Defendants further allege that plaintiffs herein had an adequate remedy at law, and that said petition is without any statement of any equitable cause of relief, for the reason that the said taxbill to set aside which suit is brought would have become invalid if suit had not been brought thereon on or prior to May 31, 1900; that said suit was filed on May 28, 1900, and the first term on which it would be returnable is October, 1900; being the same term of court at which a
“And defendants allege that on the 31st day of May, 1900, they filed a suit.to foreclose said taxbill against said property, which suit is now pending in this court, being cause number 1235.
“Wherefore, defendants ask that plaintiffs’ petition be dismissed with costs.”
It is unnecessary to burden this opinion with a reproduction of the entire contract made and entered into for the performance of the work in the improvement of the streets of Kansas City. It will suffice to embrace in this statement simply that part of it which forms the basis of this dispute, and to which the legal propositions urged by counsel are applicable. That provision of the contract is as follows: ‘ ‘ The work of constructing said macadam pavement shall be commenced within ten days from the time .this contract binds and takes, effect, and shall be prosecuted regu-' larly and uninterruptedly thereafter (unless the engineer shall specially direct otherwise in writing) with such force as to secure its full completion within ninety days from the date of its confirmation; the time of beginning, rate of progress and time of completion being essential conditions of this contract, and if the contractor shall fail to complete the work within.the time above specified, an amount equal to the sum of ten dollars per. day for each and every day thereafter, until sijch completion, shall be deducted as liquidated damages for such breach of this contract from the amount of the final estimate of said work. ’ ’
Upon the trial, the entire contract was introduced, together with the ordinance confirming it. There was also introduced the estimate of labor performed and material furnished by the superintendent of construction, which was made February 3, 1896; the work was accepted February 11, 1896, and the taxbills issued February 14, 1896. On November 18, 1895, an ordin
■ “It is admitted that no objections were filed within sixty days after the publication of notice of issue of the taxbills in .question and that the taxbill attached To the petition in case numbered 1235, and involved in this suit, was duly issued by the Board of Public Works of Kansas City, Missouri.”
Without detailing at length the testimony of the various witnesses as to the manner of the performance ■ of the work under the contract and the time of its completion, it will suffice, for the disposition of the legal propositions involved in this cause, to' say, that we have carefully read the testimony disclosed by the record, and it shows clearly that the work was not completed within the time specified in the contract, and the preponderance of evidence indicates that the work in fact was not completed until about the 3rd of February, 1896. This is indicated by the date of the estimate, supported by the statements of witnesses who testified in the cause. That the contractor who performed this work was careless and negligent about its completion, and that there was great unnecessary delay in the completion of- it, is strongly indicated by the testimony of the defendants in this cause. At.the close of the evidence in this equitable proceeding, plaintiff made the unnecessary request of the court to declare the law as follows, which request was granted:
“1. The court declares the law to be that if the work of macadamizing West Twenty-fourth street, for which the taxbill in question was issued to pay, was not done within the time specified in' the contract read in evidence between Kansas City and the Kansas City Macadamizing Company, then said taxbill is void, and plaintiff is entitled to the relief prayed.”
OPINION.
First. It is contended by appellants that the failure of plaintiffs, or any one else interested in the lot, to file with the board of public works their objections in writing to the validity of the taxbills, within sixty days after such bills were issued and due notice of their issuance was published, as provided by section 23, article 9, of the charter of Kansas City, constituted' a complete defense to this action.
The propositions involved, in that contention were fully, fairly and ably discussed by Gtantt, J., in the case of Barber Asphalt Pav. Co. v. Ridge, 169 Mo. 376, In that ease, as in this one, numerous reasons are earnestly urged in support of the contention indicated by defendants. Upon a reconsideration of the questions so ably presented by learned counsel for appellants, we see no reason to depart from the conclusions announced in the Ridge case. At the present sitting- of this court, the propositions involved in that case were again considered by the court, in Barber Asphalt Co. v. Munn, page 552 of this volume, and the former ruling reaffirmed. This is decisive of that proposition.
Upon the only remaining question involved in this controversy, we will say that a fair analysis of the recent adjudications upon the question of the time in which work must be. completed, in pursuance of the provisions of contracts and ordinances similar to those in the case at bar, settles the law upon that proposition.
The contract in this case provided for the completion of the work in ninety days from the date of its
While the terms of the contract before us vary somewhat'from those in the case of Heman v. Gilliam, 171 Mo. 258, they are substantially the same; at least the difference in the telms would not require the application of a different rule of interpretation of the contract as to the time in which the work could be completed, than the one applied in the case cited. It will also be noted that the ordinance authorizing or confirming the contract for this work did not expressly designate or specify the time in which the work was to be completed. The principles to be deduced from an analysis of the case of Hernán v. Gilliam, supra, applicable to the interpretation of this contract,, may. briefly be thus stated: A contract for the performance of work in the way of street improvement of a city, first specifying a definite time for the completion of the work, then followed by a penalty clause for failure to complete it within the time designated, in the absence of a requirement by an ordinance of the city .that the work shall be completed within a definite time, may be complied with by the performance and completion of the work within a reasonable time. In other words, time is not the essence of a contract in that form, in the absence'of an ordinance fixing a definite time for the completion of the work in pursuance of the contract. The opinion in the case from which these principles are deduced fully reviewed the authorities upon this subject under consideration, and the interpretation of the contract, as therein announced, has uniformly met the approval of the subsequent ad
It is apparent from the petition that learned counsel for respondents were proceeding upon the theory that they were entitled to the equitable relief sought for failure to complete the work within the ninety days, as designated in the contract, and while the' relief can not be granted upon that theory, yet an examination of all the allegations in the bill- will clearly demonstrate that it is broad enough to admit of the proof and support a decree (if the facts warrant it) on the ground that the work was not completed within a reasonable time from the date of the confirmation of the contract.
This decree is predicated upon a bill in equity to set aside and annul a taxbill. This proceeding can as well be maintained upon the ground that the work was not completed within a reasonable time,, as it could be in a case where time is made the essence of the contract, and the work is not completed within the time fixed. The only difference in proceedings of that character is, that in one, the proof as to the time of the completion of the work would be furnished by the contract itself; in the other, the conditions surrounding the work and the attending circumstances must furnish the reasons for granting or refusing the relief prayed for.
We have this case narrowed down to the simple proposition: is the testimony developed upon the hearing of it sufficient to support the finding of the chancellor and the decree rendered ?
If the contract involved in this dispute is to be given that force and vitality its terms indicate, then it is apparent that it was the duty of the contractor, in good faith, not only to commence this work within the time designated by the contract, but to prosecute it regularly and uninterruptedly, with such force as to
It is true, some excuses are offered for this failure in the completion of the work, all of which we have considered. None of them, .however, are embraced in the contract, nor do they furnish any legal ground for the unreasonable delay in the completion of the work.
It is not disclosed by the evidence that the ninety-days ’ limit, as designated by the contract, was unreasonably short, and, doubtless, if proper consideration had been given the provisions of the contract, this work would have been completed by November 6, 1895, instead of in February, 1896. "While this court is not disposed to uphold the nullification of taxbills, predicated upon contracts, where the evidence shows that the contractors have in good faith made an honest and
It is urged by learned counsel for appellant that the declaration of law given at the request of plaintiff was erroneous. It will be noted that this declaration was not requested in the law case; but the record discloses, and the terms used in the instruction show, it was only applicable to this case, which is one in equity. It is only necessary to say of that instruction that it has no place in this equitable proceeding. It may indicate a theory of the ease entertained by the chancellor ; but in equitable proceedings appellate courts review the facts developed, as disclosed by the record. In other words, we do not deal with theories of the chancellor in the disposition of the ease, but in the results of his final action.
If the facts developed upon the hearing support the finding and decree, such decree should not be reversed on account of an erroneous declaration of law in an equitable case.
We have thus given expression to our views in this cause, upon the record before us, which results in the conclusion that this judgment should be affirmed, and it is so ordered.
