Parker-Washington Co. v. Clinton

ELLISON, J. This action was brought to enforce the lien of taxbills for street paving. The judgment in the trial court was for the defendant. The bills here are of the same series and for the same paving as those involved in Independence v. Knoepker, 134 Mo. App. 601. In that case it was shown that the ordinance authorizing the paving referred to and made certain partial specifications on file with the city clerk, a part of the specifications,- and thereby became a part of the ordinance. These specifications required bids for the work to be accompanied by a formula. This formula provided for a principal, if not the chief, part of the work, and was not on file in the clerk’s office, nor was it in existence when the ordinance was passed. We therefore held that the ordinance did not prescribe the material or character of the work as required by the charter of the city, and that therefore the bills were void. By reference to that case it will be seen that the formula is set out and the reasons for our decision are stated at length. We find no reason for a change of opinion from that there expressed. The case has been approvingly cited in McCoy v. Randall, 222 Mo. 24, 37, under the title of Independence v. Nagle, 114 S. W. 1129. But, at the trial it was sought to show by expert testimony that the specifications themselves prescribed the material and character of the work with sufficient certainty to cover the requirement of the law and afforded sufficient data to bidders so as to insure competi [385] tion without the aid of the formula. But the difficulty with this position is that a formula was required to be submitted with the bids and it contained a principal part of the specifications for the work, and yet it was not a part of the ordinance. As was illustrated by defendant’s counsel, the specifications might have called for an asphaltum surface laid on concrete base, all of first-class material and to be done in a good and workmanlike manner; and it may be that any experienced bidder would know from such general specification what should be done to make a good pavement. But is the city to trust to the knowledge and integrity of a bidder? Is it to leave the bidder to say what mode of construction would-make a first-class job? But aside from this, whatever might have been the facilities offered for competition by the specifications as they existed and which were on file when the ordinance adopting them was passed, yet they did call for a formula set out and described in the Knoepker case, which was to be afterwards furnished by the bidder. This formula did not leave to the different views of different bidders how the work should be done and how the material should be used and constructed into a pavement. It set out iu detail how this was to be, and how the material was to be formed or moulded into a practical pavement. It is useless to call in experts as to what' could be understood from the specifications without the formula to be afterwards furnished; for those specifications themselves looked to and called for the formulas to complete themselves. In other words, the specification_s on their face were incomplete and insufficient without the formula. It seems that after this action was begun and before the trial, defendant sold the property against which the bills were issued, and it is now insisted by plaintiff that he cannot be permitted to contest the validity of the bills. Plaintiff says the action is in rem, against the [386] property alone, and that only its owner can defend. The cases of Hunter v. Savings Bank, 158 Mo. 262, 270, and Barber Asphalt Paving Co. v. Young, 94 Mo. App. 204, are cited in support of the proposition. We do not see that they have any application. It is a singular position for plaintiff to assume. It brought the action against defendant as the party to defend, and now claims that he has become disabled to defend, not by reason of any act admitting or establishing the validity of the bills, but by reason of having-sold the property. It seems to us that plaintiff has taken a position Avhich must destroy it. It is necessary that plaintiff should prosecute the action against a proper defendant, and if it finds itself without such antagonist, it should have sought the proper one and proceeded to bring him into court. But the position is not well taken. The action was brought against the property, and if the owner transfers the property pendente lite, the transferee will be bound by the judgment. [O’Reilly v. Nicholson, 45 Mo. 160; Turner v. Babb, 60 Mo. 342; Holloway v. Holloway, 103 Mo. 274; Turner v. Edmonston, 210 Mo. 411; Burnham, Munger & Co. v. Smith, 82 Mo. App. 35; Mellen v. Moline Iron Works, 131 U. S. 352; 2 Story’s Eq. Jurisprudence, sec. 406.] And so in this case, if the bills had been found to be valid, the judgment which would have been obtained by plaintiff Avould have bound defendant’s grantee. The judgment is affirmed. All concur.