City of St. Louisex rel. Sullivan v. Clemens

Holmes, Judge, delivered the opinion of the court. This was a suit upon special certified tax bills for grading, curbing, and macadamizing a street in the city. The plaintiff recovered judgment, and the defendant appealed. The material points may be considered as already determined by the previous decisions of this court in similar cases. The first ground of error that is relied upon for a reversal was, that the contract with the city was not assignable, and that the plaintiff, as assignee, could not maintain this suit upon the. evidence which was offered. This was not one of those contracts which stipulate for the personal services, knowledge, skill, and experience of another. It was for work which might be done as well by a third person as by the contractor himself in person; and it comes within the ruling in Leahy v. Dugdale, 27 Mo. 437. The city did not object to the assignment of the contract, nor to the work as done, but recognized the plaintiff as assignee and the person entitled to receive the tax bills. The plaintiff may be allowed to maintain the suit within the decision in The City v. Rudolph, 36 Mo. 465. The exceptions to the admissibility of the evidence offered turned upon this point, and were not well taken. The second error complained of related to the defense that the defendant had sustained damage by reason of the negligent and unskillful manner in which the work was done in respect to the surface drainage. The instructions on this subject were sufficiently in accordance with the previous decisions of this court. (City v. McGrath, 36 Mo. 467; City of St. Joseph v. Anthony, 30 Mo. 537.) The rule was more correctly stated in the instruction which was given by the court on this point than in that which was refused for the defendant. The other instructions contain no error for which the judgment should be reversed. The jury has passed upon the weight of the evidence, and we have found no reason for interfering with the verdict. Judgment affirmed. The other judges concur.