Cushing v. Bullock

131 S.W. 713, 151 Mo. App. 281, 1910 Mo. App. LEXIS 770

• Court: Missouri Court of Appeals
• Decided: November 7, 1910
• Status: Published

Opinion

ELLISON, J.

Plaintiff’s action is based upon certain special taxhills issued for improvements begun on certain streets in the city of St. Joseph, when the abutting property was owned by the widow and children as heirs of one Hutton. They afterwards sold to defendant Bullock. The judgment in the trial court was against the validity of the bills.

The ordinance authorizing the work is the same as that declaimed to be void in Cushing v. Russell, 134 Mo. App. 650, and it is conceded that the bills are void under that decision unless validated by the following consideration:

The contract for doing the work provided that it should be completed within ninety days from the 3d of October, 1901, and time was made an essential condition of the contract. The work was not completed until near six months after the time it was agreed that it should be. However, the city afterwards extended the time six months beyond thai stated in the contract, and the work was completed within the extended time. It seems that during the progress of the work the contractor concluded that the taxbills would probably be invalid and he set about to obtain the written request from property holders to proceed with the work according to thé contract and that if he did, they would not contest the bills. Mrs. Hutton, the widow, signed this request, though the other heirs did not. This request was signed before the original time of ninety days for completion of the work had expired and before the time had been lengthened by the six months extension. It was stated by counsel that the defendant Bullock did not know of this request of property holders when he bought the property, and it was, therefore, not binding on him. But it will not be necessary to consider that phase of the case.

The plaintiff contends that by signing the request to complete the work, there was a waiver of the invalidity of the taxbills, and that is the question for decision.

The writing requested the contractor “to do the work and complete the same' in accordance with the terms and provisions of the aforesaid ordinances and of his said contract with the city of St. Joseph, and we agree that if said Halsey (the contractor) will complete said wrork to the satisfaction of the city engineer as aforesaid, that we will not contest the validity of any taxbills issued in payment for said work and against our respective pieces of real estate, but we hereby waive any and all defenses which might be made against said taxbills.”

Bearing in mind that when this request was signed, the contract required the work to be completed within ninety days from the third day of October, which would be in the first days of January following, it must be apparent that it could not have relation to, or influence upon, any other condition than those then existing. It seems that the contractor afterwards concluded that he would not, or could not, complete the work as agreed and he, without Mrs. Hutton’s consent, obtained from the city six months extension of time, as already stated. But the request relied upon as a waiver was conditioned that the contractor should not only go ahead and “do the work” but he was to “complete the same in accordance with the terms and provisions” of the contract, among which was the imperative one that the work should be finished in ninety days. This was made of the essence of the contract. It must be assumed that Mrs. Hutton wanted the work done and out of the way so as not to inconvenience her or embarrass the use of the property, and so she agreed that if it was completed in the time agreed upon, she would waive the illegality which had appeared in the proceedings.

Plaintiff insists that the contract of waiver, properly interpreted, meant only that the work should be done “to the satisfaction of the city engineer.” That idea is not borne out by either the words or evident meaning of the writing. The work was to be done as specified in the original contract between the contractor and the city. The waiver contract had specified that the work should be done and completed as required by the contract with the city, and the reference to the engineer was not to annul the terms of the contract with the city, but merely that he should see to it that those terms were performed. This is evidenced by the words “as aforesaid,” which mean that the work should be performed in the manner and within the time as before stated in the contract.

The judgment was manifestly for the right party and is affirmed.

All concur.