Traders' Bank v. Payne

Philips, P. J. The result of this opinion may perhaps be more logically apparent by stating that -the action herein is founded in contract, and not on a quantum meruit. The petition sets out that the work was authorized by a certain ordinance of the City of Kansas, and that Comstock & Halsey were the contractors thereunder, who did the work, and received the tax bills therefor from the city engineer. But for the fact that the charter of the city makes such a tax bill primafaeie evidence of the regularity of every essential precedent act, it -would have devolved upon the plaintiff, in developing its case, to prove such antecedent matters, such as the existence of the requisite ordinance, the making of the contract conformably thereto, and the performance of the contract on the part of the- contractors. The fact, however, that the charter makes the [521] tax bill prima-facie evidence of such performance, does not alter the character of the action, as one founded on contract expressed. The action, then, is subject to the legal incidents of one founded on a special contract, except in so far as the charter may otherwise permit. Meyer v. Wright, 19 Mo. App. 283, 287. It is the well-settled rule of law that where the petition counts on the contract no recovery can be had on a quantum meruit. Eyerman v. Cemetery Ass’n, 61 Mo. 498; Lewis v. Slack, 27 Mo. App. 119. Nothing short, therefore, of a substantial compliance with the contract in question would authorize a recovery by. plaintilf in this action. Appellant’s counsel contends, however, that under the charter it is permissible to recover as on a quantum meruit, and that defendant’s counsel by the form of their answer have ingeniously sought to evade the spirit of the charter exception. Reliance for this contention is placed upon the following provision contained in section four, article eight, of the amended charter of the city : “ Such certified bill (tax bill) shall, in any action thereon, be prima-facie evidence of the validity of the bill, of the doing of the work, and of the furnishing of the material charged for, and of the liability of the property to the charge stated in the bill: Provided, that nothing in this section shall be so construed as to prevent any defendant from pleading in reduction of the bill, any mistake or error in the amount thereof, or that the work therein mentioned was not done in a good and workmanlike manner.” It is first to be observed that this proviso is a reservation—a beneficial provision—for the protection of the defendant taxpayer. The defendant may or may not interpose such defence. If the defendant should plead the general issue, or its equivalent, going to the very foundation of the plaintiff’s cause of action, designed to wholly defeat it, the case would stand on the contract, and not on a quantum meruit. The special defence pleaded by the defendant here [522] comes not within the terms of the language of the proviso, “that the worlc therein mentioned was not done in a good and workmanlike manner.” This clearly has reference only to the manner of doing the work. It does not touch the instance of a failure to employ the material, in kind and quantity, called for in the contract, or agreed upon or acquiesced in by the parties concerned. But it pertains solely to bad workmanship in employing the material and putting it into the construction. It applies to the lack of skill or negligence in doing the mechanical work ; and not to the case of a failure, as claimed by respondent, to complete the work as called for in the plans and specifications. The defect complained of here goes to the very substance of the contract. The contract required nine inches of concrete as a substratum for the blocks, whereas the contractor only employed six and three-quarters of concrete. No question is made but that the workmanship in putting in the concrete, as far as it went, was good enough; but it was not the concrete foundation called for by the legislative body of the city, and that prescribed in the contract. It is the same as if A should contract with B to put in a foundation for a house, of stone, two feet wide, and three feet below the surface of the ground, and B should put in one, one foot wide and one foot deep. There could be no recovery on the contract by B. In the judgment of the municipal legislature a pavement laid on nine inches of concrete was essential to permanency, and to meet the wants of the public and those whose property was to be burdened with paying for it It is, therefore, not too much to say, in my opinion, that this contract was not substantially complied with, as the • jury found. The instructions given by the court properly presented the real issue. The further question raised by the appellant is, that the evidence failed to show that the pavement in front of defendant’s property was properly constructed. It is true that the evidence does not affirmatively show [523] that the concrete in front of defendant’s lots was not up to the requirements of the contract. But it does show that an examination made of about eight-ninths of the street developed the fact that the concrete fell short three inches and more of what the contract called for. The only points not so examined on the line on the street were between Eighth and Ninth streets, and possibly between Seventh and Eighth. There is nothing in the record before us to show that defendant’s property lay between these particular blocks. For aught we know it may be directly opposite to the portion of the street examined and tested by the witnesses. If in fact the defendant’s property lay opposite to that portion of the street not examined, it was a matter easily proved by plaintiff. The plaintiff presented no such question directly in any instruction asked by it. . If the question of fact was raised at all, it was in the instruction in the nature of a demurrer to the evidence. Therefore, as the matter now stands, the question is, conceding the pavement throughout Broadway, extending from Third to the most southerly street of the city, say over eighteen blocks, to be defective, as claimed by the witnesses, would the fact that there was no direct evidence as to the condition of one or two blocks on the line authorize the court to take the case away from the jury ? It would not be an unreasonable inference for the jury to make, that as the whole wrork was done by the same contractors, about the same time, and under the same contract, that eight-ninths of it wras bad from being done in a particular manner, the remaining one-ninth was done in the same way. Such an inference must be allowable, otherwise the defendant’s proof might have to go to the extent of showing that every square yard of the work, from Third to Twentieth street, was excavated and measured. The rule of “the knowm and experienced connection subsisting between collateral facts or circumstances, satisfactorily proved, and the fact in controversy ” (1 Greenl. Evid. 17) very aptly applies to such a state of case. The court could not [524] properly take such question of fact from the jury under the state of proofs before them. This, in connection with the further fact, that the assessment made on defendant’s property, under the scheme of the charter, is apportioned according to his frontage to the whole cost of the work done along the whole line of the improvement, justified the action of the court in overruling the demurrer to the evidence. It was for a completed improvement of the street that defendant’s property was taxable, under the scheme of the ordinance. This is unlike the case of Creamer v. Bates, 49 Mo. 554, where the property-owner was specially damaged by reason of the manner of doing the work in front of his property. But it is that of a street not completed according to the ordinance and the contract, in which case there can be no recovery against one abutting property-owner until the street is completed throughout. City to use v. Clemence, 49 Mo. 554. It follows that the judgment of the circuit court is affirmed. All concur.