Cure v. City of Jefferson , 1965 Mo. LEXIS 627 ( 1965 )

DONNELLY, Judge

(concurring).

I agree that, in interpreting the contract involved here, we cannot rule as a matter of law which party shall prevail.

However, it has long been the law in this State that a contract made by a municipality may not be modified or enlarged by verbal promises or commitments made by its officers. In United Const. Co. v. City of St. Louis, 334 Mo. 1006, 1020, 1021, 69 S.W.2d 639, 646, it was said: “* * * Section 2962, R.S.1929 * * * requires that contracts of this character made by municipalities must be made in advance of doing the work and in writing, which shall specify the price to be paid. The contract cannot be modified, changed, or enlarged by verbal promises, and any such promise to pay more for the work than the contract provides is void. Municipal officers have no such powers, and can do nothing except to see to it that the contract is complied with as made and the work and material paid for as the contract specifies. The intent of the law is to place all bidders and contractors on an exact equality without chance of favoritism, and, when the contract is once made, the officers in charge of the work are executive and not contracting agents of the city. ^ ^ ^

The principal opinion infers that where an ambiguity exists in a contract involving a municipal corporation as a party, oral representations or conduct of officials of the municipal corporation may be introduced in evidence by the adverse party to show a construction or interpretation of the contract by the municipal corporation different from that urged by the municipal corporation at the trial. I do not believe the existence of ambiguities in a contract lessens the need for application of the general rule quoted above.

Therefore, I concur in result.