*1 dition of the street. The unsafe condition no claimed was due to physical imperfection pavement it, in the him to leave caused misleading mark, due to a misinterpretation or his mark, might as the direction We, traffic move thereon. there- fore, hold not liable for is black effect line negligent misleading direction to traffic. Ferguson is Bradley, CG., reversed. concur.
PER Hyde, C., opinion by adopted CURIAM: The foregoing court. All Douglas, as the judges concur, except J., voting not a member of the court when cause was sub- mitted. County Scott, Appellant,
Walter of St. Louis. 111 W. (2d) 186. One, Division December appellant. John A. Nolan for Heneghan
George appellee. E. *2 County, BRADLEY, C. The Louis 7920-7923, proceeded what now Sections under pp. 6787, 6788), to make 7920-7923, secs. *3 Ogden Avenue. improvements called The certain on what is improvements to the to Blackburn-Crean Construction make was let $29,675.23. company made Company of The construction on a'bid court, accepted by county work the improvements, and was the the improved against abutting the the on special property tax bills and accepted by county to by the and delivered and roadway were issued paid on and The company. county $7500 the construction the company tax bills. The covered the construction the balance was balance amount sufficient to reduce the on tax an collected the bills assigned unpaid tax the bills $10,889.28, and thereafter brought unpaid on plaintiff the assignment, the suit all tiff. After against tax No. the of on bill tax bills. One these suits was was Eliza Maresehal. held in that suit property Joseph of and It judgment so void. The of the circuit the tax bill was court that alleged by record, appear present the but it holding in County “St. without so held Louis was plaintiff that it was roadway charge any expense authority part of the of such power or Ogden special abutting Avenue, on tax against property and issue (for improvement) therefor, presented to petition since bills County not, fact, of St. did in contain the county court Louis Ogden a of owners resident signatures majority on said and liable to taxation therefor.” Avenue petition was that “the stipulated cause for the In the it signatures majority a not contain the improvement did ’’ liable to And' taxation therefor. resident said street and owners stipulated virtue of the decision” in the “that suit further unable to enforce 962, “plaintiff has been said tax bill and on tax bill recovering special on all from the other plaintiff is barred tax that bills.” plaintiff above reflected contends so situation and Under county reasonable value pleaded to him for the is liable - less improvement, into labor and material that went $10,899.28, county for judgment paid, amount and asked liability Defendant denied unpaid tax on the bills. the balance assignor’s plaintiff’s 62A of generally, pleaded and clause n withthe county. reads’: This clause been has entire work engineer “When the is satisfied contract, completed, accordance with the terms properly by the paid have been all other bills labor, and that material and and make a final contractor, time, he a reasonable estimate shall in completed- certify work has been county court that the shall approved. The shall then warrant issue ($7,500.00) of seven five for the amount thousand hundred dollars county’s special tax portion of work cause to be issued and shall bear, thirty balance, for the which tax shall interest bills after (30) eight every days (8) per rate cent per at the annum ground special piece shall a lien lot or such bill accept- in same until same is The contractor paid. described his special properly tax bills ance executed shall' release the County delivery by of St. from all claims, Louis further acceptance of such bills shall constitute an work called therein. finding cause jury was tried before the court without a were for. defendant. Motion for new trial over- plaintiff appealed. ruled and here) (appellant Plaintiff principally relies oh Section ’ 12109, p. 6425), sec. Louis,
Fisher v.
thorize or authority to any extra com- pensation, public fee or to a officer, agent, allowance con- servant or tractor, after service has been rendered or a has been entered performed into and' in or part, whole in nor pay nor authorize the payment any claim hereafter created the State, any or municipality State, any-agreement under or contract 1088 authority law; unauthorized express
made without and all such agreements or void.” contracts shall be null and
Section sec. 1929 p. township, 1827) county, city, town, village, reads: “No school corporation school make con- district or shall municipal other scope powers or be tract, unless same shall be within the its expressly upon by made law, nor unless contract be authorized such wholly subsequent a performed consideration to or executed to be contract; including con- making contract, of the sideration, made, in be writing shall be when and shall and dated by agents law parties thereto, by subscribed or their authorized duly appointed writing.” authorized in Security al., In Hillside W. et 300 Mo. Co. Minter only l. c. it was applies held that Section where contracting parties pursue proceedings have failed “to form prescribed by law in executing contract otherwise authorized law,” apply but that said section “where the have prescribed procedu-re not followed up making to the (Italics ours.) contract itself.” Plaintiff the stipula admits improvements tion that contract make the tax bills' and the initio, were void ab because “a majority of the on” owners resident portion roadway improved sign to be did petition not improvement required by for the apparent, Section 7920. It is according admission, to the that the follow did not “the prescribed procedure leading up making to the of the contract.” procedural One steps essential majority was that “a of the ’’ sign portion improved owners on the petition, be and this followed, according to the record. In Fisher v. Louis, Mo. on relied tiff, appears Fisher city filling made contracts two with the up ponds property certain private city, ponds within the which had been considered as nuisances. The provided contracts paid work special would be for “in tax bills assessed property owner or owners of the where the work was done,” and that delivery to the contractor should be “full pay- ment” for work. Fisher the work did and received, as pay- ment, proved certain bills “which invalid, uncollectible, worthless, having competent legal been issued without author- ity. Fisher sued the collect the price. It was held that Fisher had done the work “and entitled to compensation,” paid, “if right and that he had not been it was his to sue for the *5 work.” value of Jefferson,
Oster of 57 Mo. App. v. is similar in principle to the Fisher case. The decision in the Fisher ease prior was to the of IY adoption Section Article of the Constitution and was also
1089 2962, Revised Statutes of Section enactment prior Section Section of to the enactment subsequent was was (Laws 44), and Section 1874, p. enacted in was Section now 110.) However, what is (Laws p. in 1863 enacted The Oster case opinion. case to in Oster 12109 was not referred quoted, provision of constitutional subsequent adoption 2962 and Sections subsequent the enactment supra, also does case. It on the Fisher be based 12109, but the seems to void. In the why were tax bills appear in the case not Fisher void city were bills, by proposed pay, the tax which the Oster case pointed issue authority to them. It was because was without 158 W. that the City, 251 Mo. out Cotter Kansas adoption Constitution “was our Fisher case before the 2962) (now con- there the statute Section before the enactment sidered. to the fact in the Fisher calls attention that
Counsel defendant assignee an cases, plaintiff and not and Oster the contractor was present case, plaintiff in the where mere as is the situation bills defendant any never time contractual relation with the at hád county. appears here introduced in plaintiff It in the that record docu- evidence the various court and various orders resulting ments file with to and in the court company, ap- execution of the with the construction acceptance issue of the proval and and the acceptance by the the tax So it appears contractor of bills. set-up.
trial court before whole trial had it the merely theory does disclose on it is based. It recites': court not what “Whereupon attorneys respective come their hereto cause is on the evidence adduced and on the resubmitted stipulation day to certain herein and the facts this filed court having being duly seen fully heard the same and advised joined premises and concerning- the doth find the issues herein plaintiff. favor of defendant and Wherefore it adjudged nothing plaintiff ordered and take that said of action herein his cause said defendant and that said go day defendant hence without and have and recover said tiff incurred, the costs herein for which let execution issue. stated,
As court, cause tried to were no there given. declarations of law asked In view of the record we do not think the trial court found for defendant on the theory he could that any not recover he never at time had contractual rela- county. with Plaintiff proceeded theory tions on the he that in the assignor stood of his rights shoes and was entitled to all the assignor. (but deciding) of his Conceding plaintiff stands assignor, in the shoes of his Ave are constrained he to rule cannot *6 supra, 1929, quoted, recover, because Section apply this because it does not '“where applicable. is not And prescribed procedure up have not followed 193). (254 S. making, of the contract itself” W. l. c. ap unfortunate, since Section 12109
The is situation (Sec. city, 2962, supra), cannot ply, “the under the statute be held effect, (binding) must without writing.” City, 251 Mo. be in v. Kansas l. c. [Cotter S. W. 52.] Ferguson should affirmed so is ordered. Hyde, C'G., concur. opinion foregoing PER CURIAM: The C., adopt- Bradley, judges court. All except concur, Hays, ed as J., absent. a Cor- Company,
Narcissa Kansas Public Crews v. Service poration, Appellant. (2d)W. 54. One, Division December 1937.* Opinion May Term, July 30, 1937; *NOTE: filed at motion for re- filed; hearing September motion Term, at overruled December