Clay v. City of Mexico

BLAND, P. J. I. In the Board & Owen case there were two counts to the petition. One in trespass, the other for damages for the negligent cutting down of the street. The petition in the present case alleges in substance that the city of Mexico wrongfully and negligently cut down the street to617 plaintiff’s damage. No trespass is alleged. Tbe injury alleged in botb causes is tbe same but in neither case is it alleged that Board and Owen and tbe city of Mexico were joint tort-feasors, nor is tbe city charged at all with tbe commission of a tort, nor is it alleged in tbe petition in either case that Board and Owen and tbe city in conjunction cut down tbe street. On tbe contrary in the one case tbe negligent acts are charged to tbe sole account of Board and Owen and in tbe other to tbe sole account of tbe city of Mexico, acting through Board and Owen, and its street commissioner, as its agents and officers. Tbe release of Board and Owen was not a release of them as joint tortfeasors with tbe city, and does not therefore inure to tbe benefit of tbe city. If tbe stipulation is susceptible of a construction that w'ill give to it tbe force and effect of an accord it shows oil its face that Board and Owen agreed to pay certain costs. Until tbe agreement is fully complied with there can be no satisfaction and there is no evidence that Board and Owen have paid these costs. Accord without satisfaction does not operate as a release. Our conclusion is that tbe motion to dismiss tbe appeal is without merit and is denied. EE. There was* no specific ordinance authorizing tbe improvement of Clark avenue. Its grade had been established by a city ordinance, but no ordinance or resolution of tbe city council bad been passed directing that tbe street be brought to tbe established grade. Tbe street and alley committee of tbe city council ordered tbe work to be done and it was done under tbe supervision of tbe street commissioner. It seems from the evidence that it was not tbe purpose of tbe street committee to bring tbe street to exact grade, as tbe city engineer was not consulted about tbe work, nor did the street committee or superintendent seek to ascertain what tbe grade was. But tbe performance of tbe work on tbe street did bring it, approximately, to tbe established grade. Plaintiff offered to prove that a report of tbe work and -of its cost was made by tbe superintendent of streets to the [618] city council and that tbis report was by tbe council approved and tbe cost of tbe work ordered paid. Tbis evidence was excluded by tbe court. Eor tbe purpose of discussing tbe question whether or not plaintiff made out a prima facie case, we will consider tbe rejected evidence as a part of tbe plaintiff’s case and as tending to prove a ratification by tbe city of tbe work. "We will then have two questions presented for solution: First, whether or not tbe street committee bad tbe authority under tbe charter and ordinances of tbe city to order tbe street commissioner to do tbe work; second, if tbe street committee was without authority to order tbe work done, is the city liable on account of tbe ratification by tbe council of tbe unauthorized acts of tbe street committee and the street superintendent? Tbe city of Mexico, being a city of tbe third class, may pay for tbe grading of streets out of tbe general revenue fund. Third subdivision, sec. 5858, R. S. 1899. The general ordinance of tbe city provided that tbe expense of grading streets shall be paid out of the general revenue fund. Tbe eighth subdivision of section 5858, supra, provides that, “Before tbe city council shall make any contract for.... grading any street.... an estimate of tbe cost thereof shall be made to the city engineer or other proper officer and submitted to tbe council, and no contract shall be entered into for any such work or improvement for a price exceeding such estimate: Provided, that no such estimate shall be required for tbe making of any local or special repairs.” A city of tbe third class may provide for bringing a street to an established grade at tbe expense of either tbe city or of tbe abutting property-owners, but an ordinance providing for tbe particular work is necessary to charge either with tbe cost of tbe work. City v. Eddy, 123 Mo. 546; Wheeler v. City of Poplar Bluff, 149 Mo. 36; Kolkmeyer & Co. v. City of Jefferson, 15 Mo. App. 618; Koeppen v. City of Sedalia, 89 Mo. App. 648; Reed v. Peck et al., 163 Mo. 333. If such work is [619] done without an ordinance providing for it, the city can not be bound by a ratification of tbe work after it has been done by any action of the city council. Kolkmeyer & Co. v. City of Jefferson, supra; Savage v. Springfield, 83 Mo. App. 323. "We conclude that if the purpose of the improvement was to bring the street to the established grade, the street committee was, in the absence of any ordinance providing for the work, without authority to bind the city and that it was not within the power of the city to ratify the unauthorized act of the street committee and street commissioner so as to make the city responsible for the damage alleged in plaintiff’s petition. HI. It is contended by the plaintiff that the improvement of the street was not done for the purpose of bringing it to the established grade but was ordinary repair work. The fifth subdivision of section 5858, supra, provides that, “Ordinary repairs of streets may be made in the same manner prescribed in this Subdivision of this section, but repairs on unimproved streets shall not exceed fifty dollars per year for each city block.” The other improvements referred to are such as may be paid out of the general revenue fund of the city or by assessments against the abutting property-owners. The duties imposed by the ordinance on the street committee nowhere authorize it to order repairs of streets. The duty of seeing that the streets are kept clean and to remove obstructions, etc., is by ordinance delegated to the street commissioner, and it may be conceded that.the street committee may order, or that the street commissioner may without orders, in cases of emergency, make such repairs as are necessary to restore a street that has been suddenly damaged to a passable condition. But beyond this and the making of such trifling repairs as nailing down a few boards on a sidewalk or making some slight repairs' to a street, the work for improving or repairing streets, alleys or sidewalks must, to bind the city, be provided for by an ordinance. The work alleged to have been [620] done, if not to bring tbe street to grade, was to improve tbe street and was of sncb a character and extent as could not lawfully be doné in tbe absence of an ordinance or a resolution of tbe city council directing its performance. We so beld in tbe case of Olay against Board and Owen and adhere to that ruling. Tbe judgment is affirmed. Barclay and Goode, JJ., con■cur.