135 Mo. 44 | Mo. | 1896
This is an action against the city of St. Louis on a contract for the construction and reconstruction of sidewalks within a designated district.
The contract was entered into July 22,1890, under ordinance number 15109, approved July 3, 1889, by and between plaintiff Steffen on the one hand and the city on the other by the president of the board of public works, and countersigned by the comptroller. By the contract plaintiff obligated himself to do the work of constructing sidewalks with artificial stone flagging, and repairing sidewalks with brick within the district bounded north by Franklin avenue, south by Clark avenue, west by Twelfth street, and east by Third street for a term ending July 1, 1891. This contract was made in pursuance of a public letting by the board of public improvements and required plaintiff to do said work u whenever and wherever directed by the street commissioner.” The contract was made in conformity to
An itemized account accompanied the petition showing the details of the work done.
The answer was as follows: “Now comes said defendant and for answer to plaintiff’s petition, admits that it entered into an agreement set out in plaintiff’s petition, on, to wit, the twenty-second day of July, 1890. Further answering defendant denies each and every other allegation in plaintiff’s petition contained. For further answer and defense this defendant says that it was provided by the seventh section of the general stipulations of said contract that this defendant should have the right, on ten days’ notice, to suspend or stop the work contemplated by said contract without cost to dr claim against the city of St. Louis. That pursuant to said power the board of public improvements of the city of St. Louis, with the approval of the-mayor, did order the plaintiff to stop work under said contract, but that the said plaintiff was paid, in full, for all work and labor done and materials furnished up to the time of the stopping of said work.”
To'this answer respondent filed a reply by way of general denial.
The cause was referred and the referee in due time made his report and recommended a judgment for plaintiff for $2,362.92, with interest at six per cent, from the commencement of this suit.
The defendant moved to set aside the referee’s report but its exceptions were overruled and judgment rendered as recommended by the referee.
The facts will be best noted in the further consideration of the errors assigned by the city counselor.
I. Jurisdiction of this court to determine this appeal is conferred by that provision of the constitution which originally provided for an appeal to this court.
II. The action is at law and the referee’s finding of facts has the effect of a special verdict, and when there is substantial evidence to support it, it is conclusive as to the facts, but his conclusions of law, if erroneous, may be set aside and the law properly applied to-the facts found by either, the trial or appellate court. Wiggins Ferry Co. v. Railroad, 73 Mo. 389; Gamble v. Gibson, 83 Mo. 290; Lingenfelder v. Brewing Co., 103 Mo. 578.
We proceed then to examine the errors of law assigned by defendant.
G-rouping the items according to the plan employed by the referee in his report, the first group for consideration is composed of items 5, 6, 8, 9, 10, 11, 12; and 13, amounting to $195.42. The referee found that the separate bills presented by the respondent for these items were all approved by the street commissioner. It is now insisted by the city counselor that the referee erred in allowing these items because the street commissioner had no authority to order this work done; that parties dealing with city officials act at their peril.
The charter and ordinances constitute the power of attorney of the street commissioner. By section 15, article 6, of the scheme and charter the board of public improvements, through the proper officer thereof, is
It was stipulated by the respondent in his contract with the city that he would construct sidewalks “whenever and wherever directed by the street commissioner within the designated district covered by the contract,” and by subdivision 4, of the contract, “extra work” is provided for with the stipulation that the prices therefor shall be approved by the street commissioner.
The referee found the work was performed in obedience to orders from the street commissioner and each item approved by that officer.
The argument of the city counselor is, that while the board of public improvements is authorized by the charter to provide for repairing of sidewalks by public letting, these walks must be paid for by special tax bills against the owners of the adjoining property.
Let this be conceded, the power is vested in the city to require and compel the repairing of sidewalks. Her board of public improvements is the body created to secure the performance of this work and make contracts therefor. This was done as admitted by the pleadings. That board made this contract by which this plaintiff; was bound to do this repairing at prices specified “whenever and wherever required by the street commissioner.” It is conceded the street commissioner directed this work, and that in obedience to the contract and the orders of the street commissioner
Under these circumstances we can not see that there is any want of corporate power to contract, or that the street commissioner exceeded his authority in directing these particular repairs. He is a charter officer. Every presumption must be indulged that they were proper and necessary. He has so certified.
No special tax bills have been issued to plaintiff because after he had entered upon the performance of his contract and proceeded so far, he was, without any just cause, prohibited from completing the whole sidewalk, and it is now urged by the city, whose chosen official stopped this work, that the contractor can not recover because he obeyed the officer who had the superintendence of the street. We hold this plea to be unconscionable under the circumstances. Plaintiff seeks to recover only for the work done under the orders of the superintendent and for the amounts allowed by that officer. The city having by its own act prevented the issuing of a special tax bill, must respond upon its own contract.
III. What has already been said applies with equal force to the group, of items numbered 1, 2, and 3. As to these, the city counselor says: “These are all charges against the city for work properly begun under a proper notice and stopped before the completion by authority other than the board of public improvements with the approval of the mayor, and, as already herein shown, the city can not be made liable therefor whether the work was stopped by any other person, it matters not who.”
In this connection it is well to keep in view that no such defense as is here made is contained in the defendant’s answer. In its answer the city relied upon the seventh section of the contract which gave it the right to stop the work “for want of means or other
If the argument of the city counselor is to prevail the plaintiff occupied a peculiar position. By his contract he had agreed that all persons employed on the work under his contract should obey the instructions of the street commissioner, and yet when he obeyed this order he must forfeit all compensation for the work done under his contract in good faith. We know of no principle of law which would permit the city to thus violate its contracts and escape liability therefor, and the exception to these items is overruled.
IV. G-roup third, composed of items 4, 7, and 15, falls within the principle of the group considered in the last preceding paragraph and the exceptions, for the same reason, must be overruled.
V. It remains to consider the fourteenth item o'f the exhibit. This item is for labor in sifting crushed granite used in executing several of the orders of the street commissioner.
This sifting was done on the order of the street commissioner, who had been informed by one of the inspectors of the work that the granite contained dust or dirt. Plaintiff, however, did not understand this was the reason for the sifting. He testified that the city officials desired to try an experiment and so had the granite sifted so as to- exclude the finest part of granite. The contract provided that the crushed granite should consist of irregular shape edged pieces so broken that each piece will pass through a three fourths of an inch ring in all its diameters and should be free from dirt and dust.
The contract gave the street commissioner ample powers to decide all questions relative to the execution of the contract. He was authorized to require the
The referee finds the granite did not contain dust or dirt; that the plaintiff did do this screening, as he understood, to enable the city to make the test and there was no reason for this sifting but the order of the commissioner. We find no error in the finding of the referee.
Upon the whole case we find no error in the principles of law adopted by the referee and circuit court in ascertaining the liability of the city, and as there was substantial evidence upon which to base the referee’s finding, the judgment is affirmed.
