Rombauer, P. J.,
delivered the opinion of the court.
This is a proceeding in equity seeking to cancel' a special tax bill, issued by the city of St. Louis, to the defendant contractor in full payment of the work done and materials furnished by him in reconstructing a street upon which plaintiffs’ property abuts. The tax bill under the charter is a prima facie lien on the property. The contract under which the work was done included the taking up and removing of the old pavement, the preparing with concrete and hydraulic cement of the roadway, the renewing and re-adjusting of the curbing, and the paving of the roadway with granite blocks laid on a concrete base. The sole claim for relief by the plaintiffs is based on the ground that the contract was illegal for non-conformity with the ordinance, and that the special tax bill issued by the city for the work is a cloud upon plaintiffs’ title. Upon a trial of the cause the court dismissed plaintiffs’ bill on the ground, that there ivas no substantial variance between the ordinance authorizing the work and the contract, nor any substantial variance between the requirements of the contract and its performance.
We may state at the outset, that no claim is made in the petition of any other variance between the ordinance and contract, than the one relating to that part of the work which refers to the depth of the granite blocks. The trial court, as above indicated, heard evidence on both propositions, namely, whether there was a fatal variance between the contract and the ordinance, and [429]*429-whether the work was done in substantial compliance with the contract. There was no pretense that the material used, general scope of the work, and manner of- its execution, were different from those prescribed by the ordinance and contract; hence any variation to the owner’s prejudice, between the requirements of the contract and its execution, was wholly foreign to the issues in the case. If any such existed, the owners’ remedy at law by recoupment was complete. Creamer v. Bates, 49 Mo. 523. Not even on the widest conception of his rights in equity could the owner seek a cancellation of this tax bill, 'if the work was authorized by ordinance and contract, on the sole ground, that variations existed between the contract and its execution, which, while not changing the material or general scope of the work, rendered its performance less valuable to him. We may add in this connection that the court in Creamer, v. Bates, supra, cites the case of Marsh v. Richards, 29 Mo. 99, which was the case of a common building contract, and the court in the case of Yeats v. Ballentine, 56 Mo. 537, which was the case of a common building contract, cites the case of Creamer v. Bates, recognizing no substantial distinction between the contracts of this class and other building contracts, as far as the question is one affecting the owner’s remedy. All evidence therefore, which goes only to a variation between the contract and its performance, may be at once laid out of view as foreign to the case.
The substantial question presented is this: The ordinance provides that, on the concrete foundation, there shall be placed a pavement of granite blocks eight inches deep, set on edge. The contract provides in its specifications, “The blocks shall not be less than eight inches, nor more than twelve inches long, not less than three inches, nor more than four and' a half inches wide, nor less than seven inches, nor more than eight inches deep, and dressed so as to approximate closely a rectangular form with opposite faces closely approximating equal areas.” The fatal variance between the [430]*430contract and ordinance is supposed to arise in the clause placed in italics.
The entire evidence concedes that a pavement of granite blocks eight inches deep, whether the words, eight inches, refer to the blocks or to the pavement as a whole, cannot mean that each block must be of the exact depth of eight inches, nor that the pavement, as a whole, must be of that exact uniform depth. Such a requirement would make a pavement of that character so costly as to become wholly impracticable. It would, as the uncontradicted evidence shows, more than treble the expense. If the term does not mean exact eight inches, it must mean something else, and what that something else is, is a question of fact to be determined upon the evidence. For the purpose of determining the meaning of the term, the plaintiffs introduced no evidence whatever. The defendant introduced the following evidence: Paving with granite blocks is of comparatively recent date in the city of St., Louis. Such pavements were not generally adopted until about ten years ago, and were originally made with six-inch granite blocks, which subsequently were changed to eight-inch blocks, as affording a firmer pavement. According to the .defendant! s witnesses (whose evidence is wholly uncontradicted) the term eighMnch block was known and treated by all parties bidding, as well as by the board of public improvements, to mean a block of between seven and eight inches deep, so that the term had acquired, between the parties employing it, a trade meaning prior to the execution of the contract in controversy. The ordinances never specify the work to be done except in a general way; the details of it are shown by specifications in the street commissioner’s office, and all bids are made subject to such specifications. The specifications for inspection in this case were identical with the specifications embodied in the contract.
[431]*431It will be thus seen that, in no view of the case, could there be any question, under the evidence, of fraud or want of consideration, even if such questions could be considered under pleadings which do not raise them. The contractor’s bid offered in evidence by plaintiffs refers to letting number 1669, in accordance with the printed form of contract and specifications for said work. The printed form of contract and specifications is conceded to be the contract and specifications under which the work was done. There was no secrecy in the matter, and the meaning of the term, eight inches, could be misunderstood by no one, since the specifications as above seen described the dimensions of the blocks to be used, in detail.
The appellants’ counsel argues that the meaning of the term,.eight inches, could not be varied by trade usage, or an agreement between the contracting parties. That argument loses sight of the fact that the term in its very nature could not mean eight inches exact, and that,the meaning of the term had to be defined by outside evidence of trade usage. Counsel further argues that usage could not fix the meaning of the term, as meaning between seven and eight inches, because such usage would not be reasonable, and was not shown to be sufficiently long continued to create a custom. Whether the usage was reasonable, depends on the fact, as to whether a block between seven and eight inches deep is of substantially the same service in constructing a good pavement as one of a greater depth than eight inches. The testimony on that subject is uncontradicted, and is to the effect that it is of substantially the same service. The experts called by defendant, several of whom are wholly disinterested scientific men, testify that one of the main aims to be attained in the construction of these pavements is to secure a uniformity of upper surface. The depth of the excavation and concrete foundation are prescribed by the ordinance, and it is essential to a good [432]
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Rombauer, P. J.,
delivered the opinion of the court.
This is a proceeding in equity seeking to cancel' a special tax bill, issued by the city of St. Louis, to the defendant contractor in full payment of the work done and materials furnished by him in reconstructing a street upon which plaintiffs’ property abuts. The tax bill under the charter is a prima facie lien on the property. The contract under which the work was done included the taking up and removing of the old pavement, the preparing with concrete and hydraulic cement of the roadway, the renewing and re-adjusting of the curbing, and the paving of the roadway with granite blocks laid on a concrete base. The sole claim for relief by the plaintiffs is based on the ground that the contract was illegal for non-conformity with the ordinance, and that the special tax bill issued by the city for the work is a cloud upon plaintiffs’ title. Upon a trial of the cause the court dismissed plaintiffs’ bill on the ground, that there ivas no substantial variance between the ordinance authorizing the work and the contract, nor any substantial variance between the requirements of the contract and its performance.
We may state at the outset, that no claim is made in the petition of any other variance between the ordinance and contract, than the one relating to that part of the work which refers to the depth of the granite blocks. The trial court, as above indicated, heard evidence on both propositions, namely, whether there was a fatal variance between the contract and the ordinance, and [429]*429-whether the work was done in substantial compliance with the contract. There was no pretense that the material used, general scope of the work, and manner of- its execution, were different from those prescribed by the ordinance and contract; hence any variation to the owner’s prejudice, between the requirements of the contract and its execution, was wholly foreign to the issues in the case. If any such existed, the owners’ remedy at law by recoupment was complete. Creamer v. Bates, 49 Mo. 523. Not even on the widest conception of his rights in equity could the owner seek a cancellation of this tax bill, 'if the work was authorized by ordinance and contract, on the sole ground, that variations existed between the contract and its execution, which, while not changing the material or general scope of the work, rendered its performance less valuable to him. We may add in this connection that the court in Creamer, v. Bates, supra, cites the case of Marsh v. Richards, 29 Mo. 99, which was the case of a common building contract, and the court in the case of Yeats v. Ballentine, 56 Mo. 537, which was the case of a common building contract, cites the case of Creamer v. Bates, recognizing no substantial distinction between the contracts of this class and other building contracts, as far as the question is one affecting the owner’s remedy. All evidence therefore, which goes only to a variation between the contract and its performance, may be at once laid out of view as foreign to the case.
The substantial question presented is this: The ordinance provides that, on the concrete foundation, there shall be placed a pavement of granite blocks eight inches deep, set on edge. The contract provides in its specifications, “The blocks shall not be less than eight inches, nor more than twelve inches long, not less than three inches, nor more than four and' a half inches wide, nor less than seven inches, nor more than eight inches deep, and dressed so as to approximate closely a rectangular form with opposite faces closely approximating equal areas.” The fatal variance between the [430]*430contract and ordinance is supposed to arise in the clause placed in italics.
The entire evidence concedes that a pavement of granite blocks eight inches deep, whether the words, eight inches, refer to the blocks or to the pavement as a whole, cannot mean that each block must be of the exact depth of eight inches, nor that the pavement, as a whole, must be of that exact uniform depth. Such a requirement would make a pavement of that character so costly as to become wholly impracticable. It would, as the uncontradicted evidence shows, more than treble the expense. If the term does not mean exact eight inches, it must mean something else, and what that something else is, is a question of fact to be determined upon the evidence. For the purpose of determining the meaning of the term, the plaintiffs introduced no evidence whatever. The defendant introduced the following evidence: Paving with granite blocks is of comparatively recent date in the city of St., Louis. Such pavements were not generally adopted until about ten years ago, and were originally made with six-inch granite blocks, which subsequently were changed to eight-inch blocks, as affording a firmer pavement. According to the .defendant! s witnesses (whose evidence is wholly uncontradicted) the term eighMnch block was known and treated by all parties bidding, as well as by the board of public improvements, to mean a block of between seven and eight inches deep, so that the term had acquired, between the parties employing it, a trade meaning prior to the execution of the contract in controversy. The ordinances never specify the work to be done except in a general way; the details of it are shown by specifications in the street commissioner’s office, and all bids are made subject to such specifications. The specifications for inspection in this case were identical with the specifications embodied in the contract.
[431]*431It will be thus seen that, in no view of the case, could there be any question, under the evidence, of fraud or want of consideration, even if such questions could be considered under pleadings which do not raise them. The contractor’s bid offered in evidence by plaintiffs refers to letting number 1669, in accordance with the printed form of contract and specifications for said work. The printed form of contract and specifications is conceded to be the contract and specifications under which the work was done. There was no secrecy in the matter, and the meaning of the term, eight inches, could be misunderstood by no one, since the specifications as above seen described the dimensions of the blocks to be used, in detail.
The appellants’ counsel argues that the meaning of the term,.eight inches, could not be varied by trade usage, or an agreement between the contracting parties. That argument loses sight of the fact that the term in its very nature could not mean eight inches exact, and that,the meaning of the term had to be defined by outside evidence of trade usage. Counsel further argues that usage could not fix the meaning of the term, as meaning between seven and eight inches, because such usage would not be reasonable, and was not shown to be sufficiently long continued to create a custom. Whether the usage was reasonable, depends on the fact, as to whether a block between seven and eight inches deep is of substantially the same service in constructing a good pavement as one of a greater depth than eight inches. The testimony on that subject is uncontradicted, and is to the effect that it is of substantially the same service. The experts called by defendant, several of whom are wholly disinterested scientific men, testify that one of the main aims to be attained in the construction of these pavements is to secure a uniformity of upper surface. The depth of the excavation and concrete foundation are prescribed by the ordinance, and it is essential to a good [432]*432pavement that the latter should have a uniform level. It is equally important that each block should have a proper sand cushioning, so as to prevent it from coming into direct contact with the concrete, which, in case the blocks are of greater depth than eight inches, might become unavoidable. These experts further testify that pavements do not wear uniformly down from the surface, but, after being worn down a certain depth, become shaky and cobbled and unfit for further use, and that, in their opinion, the specifications in the contract are a. substantial compliance with the terms of the ordinance, and are designed to secure the pavement, provided for by the ordinance, and one substantially as good as if the blocks were of slightly greater depth.
In regard to the objection, that the usage was not-sufficiently long continued to create a custom, it might be observed that the evidence tends to show that the-usage is as old as the adoption of the eight-inch block pavement, and no usage can be older than the thing to-which it refers. This is not a question of custom by which third parties are sought to be charged, but the question of the meaning of a term employed by the contracting parties. If the meaning of the term was well understood between the contracting parties, it is immaterial whether such usage was one day or one-thousand years old. Nor is there anything in the law, or in the subject-matter of the contract, which prevents-the meaning of the terms employed from being governed by usage. In Soutier v. Kellerman, 18 Mo. 509, a usage of trade, that a thousand shingles meant a bundle of a-certain dimension, containing less than six hundred and twenty-five, was held to be reasonable and binding.
The board of public improvements of the city of St. Louis are the agents of the city in regard to all street-improvements. All ordinances for such purpose must emanate from the board. R. S. 1879, p. 1608, secs. 14, 15 and 16. The assembly has no power, to contract,. [433]*433either directly or indirectly for any public work. Ib., p. 1610, sec. 27. The ordinances are all framed by the-board, and so was the ordinance in question. It is an initial and necessary step of the contract, and the same rules apply in its interpretation, as apply in the interpretation of every other instrument. When the ordinance uses the words, eight inches, it means substantially eight inches, regard being had to the purpose for which the blocks are used. The meaning of that term is-defined by the specifications, subject to which the contractor bids, as a block between seven and eight inches deep. The meaning of the term is well known to the’ contractor and all other bidders, and well known to the board, which employed it, in drafting the ordinance, in/ the sense given to it by common usage and in the sense in which they have always employed the term. The block thus provided for is the proper block for constructing the entire pavement according to its scope and design. We cannot see how, under these circumstances, there can be any reasonable doubt that the contract is a substantial compliance with the ordinance, in view of the proposition that equity deals with the substance of' things and not with their form.
If the contract is void under the charter, and thus wholly illegal, it furnishes no basis of recovery in any form of action. Keating v. City of Kansas, 84 Mo. 419. There is no difference in principle between contracts of municipal corporations, and contracts of' individuals in that regard, further, than that in the former a grant of power must be shown, and, in tho latter, the power is presumed and the restraint must b& shown. That the city had power to pass the ordinance’ is conceded. • If it made a contract in substantial conformity with the ordinance, the contractor cannot lose the benefit of his work owing to unsubstantial variations between the ordinance and contract, or the contract and its execution. Neenan v. Smith, 60 Mo. 292; Sheehan [434]*434v. Owen, 82 Mo. 458; Eyermann v. Provenchere, 15 Mo. App. 256; Leominster v. Conant, 139 Mass. 384.
With the concurrence of Judge Biggs,
the judgment is affirmed.
Judge Thompson, who dissents, is of opinion that the decision rendered is contrary to previous decisions of the supreme court and Kansas City court of appeals.
It is therefore ordered that the case be certified to the supreme court for final determination.