Spalding v. Forsee

109 Mo. App. 675 | Mo. Ct. App. | 1904

ELLISON, J.

This action is based on a special taxbill issued for street paving in the city of St. Joseph. The judgment in the trial court was for the plaintiff who is assignee of the bill.

It was provided in the ordinance (or in specifications therein adopted, which is the same thing) that the work should be done within sixty days and that time should be of the essence of the contract; and it was so provided in the contract itself. There was no other provision on that subject. The case falls directly under our decision in Smith v. City of Westport, 79 S. W. Rep. 725, where it is shown in an opinion by Judge Broaddus that the city can not validate a taxbill after the contract has been let by extending the time stipulated for the completion of the work.

The charter requires that public work should be let by public competitive bidding. When a contract limiting the time within which work must be done is competed for by bidders and is awarded to the lowest one, the bids are made in view of the time within which the work must be finished. Time is a material and important matter to consider in fixing the cost to be charged for the work. [Wickwire v. Elkhart, 144 Ind. 305; Kneeland v. Furlong, 20 Wis. 437.] If this time may be extended through favoritism or otherwise, it is manifest that there can be no certainty of a public letting by fair competition. To allow the power to extend the time indefinitely after bids have been advertised for and received on the basis of a fixed time, would open the door to hurtful temptation, to favoritism and fraud. If it be suggested that if the power be allowed, bidders would know it and bid accordingly, the answer is that the ordinary bidder could not know that he would succeed in getting further time. He could not bid on any mathematical basis; the result being that only the fraudulent and favored bidder would secure contracts for public work, and the object of the charter provision would be set at naught.

Besides, it is well known to all who have had an opportunity to observe that public work on the streets interferes with the use of such streets. It always obstructs and frequently entirely suspends business. It is of the very highest importance to the property-owner affected that it be done as expeditiously as possible. The property-owner consents that it may be done, or fails to protest against its being done, for the reason that he knows it will be over with in a certain time. If the time may be made indefinite, not only he, but the general public suffer great inconvenience, and his business may be wholly ruined. If a person is permitted to tear up a street for paving, or dig into it for sewering, in front of a place of business, he can destroy that business and ruin the owner if you but give him time enough. It is such considerations as the foregoing which has caused time provisions to be inserted in public contracts and has led the courts of this and other States to enforce them as written.

In McQuiddy v. Brannock, 70 Mo. App. 541, 547, 548, 549, we discussed the question as applied to the power of the city engineer to extend the time for performance of snch contracts. Bnt until the case of Smith v. Westport, supra, we had not considered the question as to the power of the city council. The cases of Hilgert v. Barber Paving Co., 81 S. W. Rep. 496; Childers v. Holmes, 95 Mo. App. 158; Sparks v. Villa Rosa Land Co., 99 Mo. App. 489, and others from this State cited by plaintiff will be seen, on examination, not to be in point.

The judgment should be reversed and it is so ordered.

All concur.