City of Springfield ex rel. Gilsonite Construction Co. v. Schmook

96 S.W. 257, 120 Mo. App. 41, 1906 Mo. App. LEXIS 371

• Court: Missouri Court of Appeals
• Decided: June 5, 1906
• Status: Published

Opinion

GOODE, J.

This is an action to enforce the lien of three taxbills issued to pay for paving the street in front of a lot in the city of Springfield. Those of the defendants in whom the title to the lot is vested are the heirs or devisees of John Schmook, deceased, who was the owner of the lot when the proceedings in question occurred. The other defendants are interested as trustees or beneficiaries in deeds of trust. The property lies on the west side of Boonville street, a thoroughfare along which double street car tracks run. The improvement for which the taxbills were issued is an asphalt pavement and was laid by the Gilsonite Roofing and Paying Company, which assigned the taxbills to the Gilsonite Construction Company, to whose use the present action was brought. The judgment of the court below was in favor of the defendants. Several defenses were interposed, but the only one we find it necessary to consider is that the work was not completed within the time required by the contract between the city and the original contractor, the Gilsonite Roofing & Paving Company. The proceedings for the improvement of the street were started by two resolutions passed by the council of the city of Springfield, June 9, 1898. Under the ordinances of the city and the franchises by which the street railway company (the Springfield Traction Company) used the street, it was incumbent on it to pave that portion of the street occupied by its rails and two feet outside. One of the original resolutions declared it was necessary to improve the street by paving with asphalt that portion of the roadway on either side of the street car tracks and two feet from them, and the other resolution declared it was necessary to pave with the same material the center of the street occupied hy the car tracks and two feet beyond the outer rails and ordered the Traction Company to lay that paving. The other work was to be let by the city to a contractor to be done in conformity to specifications on file in the office of the city engineer. Bids for the work were advertised for by the city and that of the Gilsonite Company was accepted by an ordinance approved July 20,1898. This ordinance said nothing about the time in which the work should be begun or finished; but the city entered into a contract with the Gilsonite Roofing & Paving Company, dated July 25, 1898, which contained a provision that the said company, as contractor, should complete the work according to specifications in ninety days from the time the contract took effect. We quote that clause of the contract:

“Now, therefore, the said party of the first part hereby agrees with the said city of Springfield, to do and complete said work according to specifications, without negligence, causing or tending to cause damage to private property for which the city might be held liable, furnishing all materials therefor at his own cost and expense, within ninety days from the time this contract goes into force and effect, according to such directions as the city engineer and street committee of the city of Springfield, may from time to time give in superintending the construction of said work, and in accordance with the plans and specifications of said work prepared by the city engineer for the letting of a contract for said work, and to the satisfaction and acceptation of the city engineer of the city of Springfield, and said specifications are attached hereto and made a part of this contract; provided, if the contractor is delayed by injunction or legal proceedings, or by any unavoidable cause, the time or completion shall be extended by the council covering said delay.”

At the time the contract was executed, a general ordinance of the city of Springfield was in force which provided that every person who should hid for the job of constructing, should enter into a written contract within ten days and complete the improvement according to the plans, specifications and ordinances within the time agreed on, without negligence tending to cause damage to private property. On September 13, 1898, the council directed the mayor to notify both the Springfield Traction Company and the G-ilsonite Company to begin the improvement. Shortly afterwards the paving company started the work. The Traction Company refused to comply with the city’s resolution directing it to put in asphalt paving between the tracks and two feet on either side and in consequence litigation arose between it and the city. On account of the action of the Traction Company, the mayor pro tern of the city served a written notice on the Gilsonite Eoofing & Paving Company, October 17, 1898, directing it to cease work under its contract until the Traction Company could be compelled to proceed with the improvement it was bound to make, or until further notice from the city of Springfield.

The testimony tends to show that on receipt of this notice from the mayor, the paving company ceased work and. shortly thereafter the weather became unsuitable for laying asphalt paving. The dispute between the city and the Traction Company resulted' in allowing the latter to pave that portion of the street it had to pave with brick instead of asphalt. On January 19, 1899, the mayor of the city notified the paving company to go on with its work, the controversy with the Traction Company having been settled. There is testimony that early in the spring, and as soon as the weather permitted, the Gilsonite Company went ahead with the improvement and completed it as quickly as possible. It was finished early in July, 1899. The contract called for its completion within ninety days from July 25, 1898, unless the Gilsonite Company was delayed by injunctions, legal proceedings or some'other unavoidable cause; in which case the period for completion should be extended by the council to cover the unavoidable delay. An attempt was made to prove that the acting mayor was authorized to serve notice on the Gilsonite Roofing & Paving Company to cease work until the dispute with the Traction Company was settled; but no such authority was, in fact, shown. In the court below no declarations of law were asked, or any findings of fact. At the conclusion of the evidence the court rendered a judgment in favor of the defendants; and on the facts the question for decision is, did it conclusively appear that the work was completed in due time so that the tax-bills were valid; or was the court justified in holding completion was so long delayed that the contract was not complied with by the paving company and, therefore, the taxbills were void? When the particular ordinance which orders an improvement, provides that it must be completed within a certain time and the prescribed time ' is exceeded, taxbills cannot be collected. [Heman v. Gilliam, 171 Mo. 258, 71 S. W. 163.] The law seems to be the same way when the particular ordinance is silent regarding the time for completion; but there is a gen- . eral ordinance relating to public improvements in force, requiring the work to be performed within the agreed time. [Allen v. Lobsap, 188 Mo. 692, 87 S. W. 926; Springfield v. Davis, 80 Mo. App. 574; Heman v. Gilliam, 171 Mo. loc. cit. 267, 71 S. W. 163.] The present contract was not rendered indefinite as to the time limit for finishing the work by prescribing a per diem forfeiture for failure to finish in the time stipulated, as was the contract is Hernán v. Gilliam. The Diavis case just cited, dealt with the same general ordinance of the city of Springfield with which we must deal in the present case, and the contract under which the work was done limited the time of completion to sixty days. Applying the general ordinance to the contract, this court held that the intention of the city and of the contractor was to provide a definite and specified time for the completion of the work, to-wit; sixty days. In the case in hand the contract did pot require the work to be done, at all events, within a certain time; that is, ninety days; but allowed some indulgence to the contractor in case it was delayed by injunction suits or other unavoidable causes, by stipulating that in such a contingency the council should extend the time for the completion of the work. If we apply the Davis case, we must hold that this contract read in connection with the general ordinance, made time of the essence of the agreement and required the. work to be done within ninety days, barring certain named contingencies. Now that the contracting company was prevented or interfered with by injunction suits, is not contended, for no suits were brought against it. The contention is that it was hindered from prosecuting the work by a notification served on it by the' city, which desired the paving company to await the settlement of the dispute with the Traction Company before going further with the work. So far- as the record, discloses, the service of this notice by the acting mayor of the city was without authority from the governing .body of the city; that is, the council. But if we grant that the notice was a good excuse for pausing in the work, the fact confronts us that in January the paving company was notified to resume the work, as the difficulty with the Traction Company had been adjusted. The paving company was, therefore, at perfect liberty to go on with the improvement after January ; and as only a week or so was required for its completion, it looks like the job might have been finished before July. The excuse assigned for not doing it sooner was that the weather was unsuitable throughout the winter and spring. But this excuse certainly raised an issue of fact for the court to determine. We are unable to say the evidence positively shows the weather stood in the way of performance of the work so that it could not be finished sooner, and, therefore, that it was finished in a reasonable time. What is a reasonable time for the doing of an act or contract is ordinarily a question of fact. [Burks v. Stam, 65 Mo. App. 455.] We can think of no instance in which the question would be more properly one of fact, to be found by the trier of the fact, than when it arises on a dispute about whether the state of the weather for several weeks was such as to interfere with the prosecution of a given kind of work. However, we do not agree with counsel for the plaintiff that the true construction of the contract, read in connection with the general ordinance, Avas to require the work to be done within a reasonable time. Our view of the contract is that it had to be finished in ninety days, unless finishing it in that time Avas prevented by injunction suits or other unavoidable causes. In any view of the matter it was for the court to decide whether the contractor was unavoidably prevented from finishing the job in ninety days; and surely it was for the court to say whether some unavoidable cause arose which hindered its completion earlier than July. The work extended seven or eight months over the stipulated time, during AAthich interval the street, presumably, was torn up and in bad condition for travel. We detect in the record no facts compelling the conclusion that the paving could not have been finished much earlier than it was. As the parties raised no legal question on this branch of the case by declarations of law, it is presented to us as a question of fact.

Justice might be promoted by conforming the law of special assessments to that governing contracts for the erection of buildings. When a contractor for street improvements is guilty of no fraud or willful violation of his agreement, he ought to be allowed a recovery quantum meruit against the property benefited, subject to penalties for delay and a right in the property owner to counterclaim for damages on that account, or for any other shortcoming which injures him. But in the present state of the law, we think the judgment of the court below must be affirmed. It is so ordered.

All concur.