Meyer v. Wright

19 Mo. App. 283, 1885 Mo. App. LEXIS 219

• Court: Missouri Court of Appeals
• Decided: November 9, 1885
• Status: Published

Opinion

Ellison, J.

The evidence was clear that the work was not done in substantial compliance with the contract, in front of defendant’s property. The evidence of each party showed this to be true.

The evidence further showed, or tended to show, that the cost of completing the work in front of defendant’s property, so as to make it conform with the terms of the •contract would exceed the amounts sued for. It, also,- appeared that the city engineer received the work and issued the tax bills in regular form.

The refused instruction declared in substance that the amount required to complete the work as it should be under the contract, should be deducted from the total cost of the work on the street, and a proportional part only of said deduction should be made from the tax bills sued on.

Defendant claims that he, as the property owner, is entitled to a reduction of the tax bills against him, according to the special injury sustained by him, and not merely a pro rata reduction from all the fax bills.

We think the defendant’s claim is the just and rational one.

In the case of Creamer v. Bates (49 Mo. 523), the court, in a case presenting a similar question, thought the view taken here by appellant an erroneous one. The court says: “If the property holder is damaged, his damage cannot be shown by others. And one single person only may be damaged on the whole line of the improvement, and he would, undoubtedly, have the right to have his injury deducted from the charge made against him.”

Besides we are unable to recognize any right in the nontractor or his assignee, to maintain an action on these tax bills until he has complied, at least, substantially, with his contract. City to use of McGrath v. Clemmens, 49 Mo. 552; Riley v. Cranor, 51 Mo. 541.

He may do just enough work, or do it in such a manner as to be a damage not only to an adjoining owner, but to the entire street.

The contractor for grading or paving has no special privilege conferred upon him by the charter of Kansas City, not common to contractors in any other work, -except the tax bill issued in his favor makes for him a grima facie case, i. e., he may recover, unless it be shown affirmatively by the defendant that he has no right to under the fundamental law of contract. The defendant has a right to show he is not “ worthy of his hire.”

The judgment is affirmed.

All concur.