City of Springfield ex rel. Updegraff v. Mills ( 1903 )

GOODE, J.

A judgment was entered in the circuit court of Greene county for $22.15 for the construction of a second-class sidewalk four feet in width on the north side of Locust street in the city of Springfield, Missouri. The work was done by a contractor by the name of Boyle, who assigned the taxbill to the relator, Updegraff.

These defenses were interposed: First, by an ordinance of the city of Springfield, the council of that city was authorized to grant the property-owners permission to construct sidewalks in front of their property, and said council on November 15, 1898, granted appellant permission to construct a walk in front of his property within thirty days from that date, yet, notwithstanding this permission, the council on November 16, 1898, accepted a bid from the plaintiff’s assignor, Boyle, for the same work and on November 28th entered into a contract with Boyle, the latter having full knowledge of the permission theretofore granted to appellant to. build the walk himself. Second, that the taxbill was void because Boyle failed to enter into a written contract and bond with the city for the performance of the work within ten days after the acceptance of the bid as the city ordinances required him to do. Third, the bill was void because the contract for „the work made November 28th, provided that it should be completed within sixty days from said date and Boyle failed to complete it within that period.

It should be stated that other persons owned lots on either side of Locust street which would be bordered by-the contemplated walk and the city council had given permission to some of those persons November 1, 1898, to construct walks in front of their property within thirty days from that date. The appellant contends that Boyle did not finish the two walks on either side of Locust street within sixty days from the date of his contract as he was bound to do regardless of the permission granted to the owners to construct their own walks.

We will take up the points raised on this appeal as they are stated by the appellant.

Is the taxbill void for failure to enter into an approved contract and bond within ten days from the acceptance of the bid?

In answering this question regard must be paid to certain facts in evidence. Boyle’s bid was accepted by the council by an ordinance passed November 15th, which provided that it should be in force from and after approval by the mayor and publication. It was approved by the mayor November 16th and published November 19th. Boyle, therefore, had until the 29th to file his contract and bond. The circuit court found he completed his bond and contract November 23rd and deposited it with the city clerk on that day, but, on account of the absence of the mayor it was marked filed on the 25th and was approved by the mayor on the 28th. Those facts settle beyond controversy that the bond and contract were filed within the time the ordinance required them to be.

What was the effect on the taxbill of letting the work while the time in which Mills might do it himself was still running?

The time allowed Mills for completing the walk i f he chose to build it expired on the 15th of December, as he had to build it within thirty days from the date permission was granted him. The circuit court found Boyle constructed the walk in front of Mills ’ property some time after December 20th and after the expiration of the time in which Mills was permitted to do it. Said court also found Boyle completed all the work on said street, including the work in front of appellant’s property, within the sixty days allowed by the contract. It thus appears that Boyle did not begin work in front of Mills ’ property until after the time in which Mills might build the walk had elapsed, and notwithstanding that late beginning it was completed within the sixty days limit. Tbe only ground for appellant’s contention that the work was not completed in the time given, is that some of the property-owners did not finish in front of their lots; but that fact can not prejudice the contractor or his assignee.

It doubtless would be better for city councils to refrain from letting contracts for improvements to some one else, when they have granted permission to property-owners to make the improvements, until after the time in which the property-owners may make them expires. But certainly no harm was done by the irregular way in which this work was let, inasmuch as Mills did not avail himself of the right to put in the walk. We can not vacate taxbills for trivial irregularities. Cole v. Skrainka, 105 Mo. 309.

As to the time in which the work had to be finished to render the taxbill valid, that was unquestionably sixty days from the letting of the contract. The above recitals from the finding of the circuit court show Boyle did finish all the walks on the street within that time, or that said court so 'found, and its finding is conclusive' as to the facts; and in truth, the appellant has set out no evidence for us to review.

Appellant has much law on his side in regard to the avoidance of a taxbill by the failure of a contractor to complete the ordered improvements within the time limited by the contract, but no facts on which to avoid this taxbill, conceding him all the law he claims.

The judgment is therefore affirmed.

Bland, P. J., and Reyburn, J., concur.