Quest v. Johnson

Gill, J.

This is a suit in equity brought by the plaintiff to cancel certain tax bills which had been issued under the new charter of Kansas City against certain real estate owned by him, for constructing a brick pavement on Eighteenth street in said city.

It is alleged in the petition that the tax bills are void because the contractor did not substantially, or at all, comply with the ordinance or contract, under which the pavement was laid and the tax bills issued, in that said ordinance and contract required the brick used in constructing the pavement to be of the best quality of hard and thoroughly vitrified brick, whereas those actually used in such construction were not hard nor vitrified at all, but were of an inferior quality, and wholly worthless for paving purposes. The answer was a general denial.

The court found the facts to be: “That a large majority of the brick with which said street wa§ paved were not vitrified' brick as required by the ordinance and contract for paving said street, but were of an inferior quality, and the court finds the value of the work done under said contract to be ninety-seven and ¡ •one-half (97i) cents per square yard, and no more, instead of one dollar, ninety-seven and one-half cents ($1.97i) per square yard, the contract price.”

The court thereupon rendered judgment against the plaintiff’s property for the amount of the tax bills, estimated at ninety-seven and one-half cents per yard, and that upon payment of such judgment his property should be discharged from all further lien on account thereof.

Plaintiff filed a motion for a new trial, alleging that the court erred in not wholly canceling the tax bills, and declaring them absolutely void, and erred in rendering judgment against the plaintiff’s property for *58 any sum; which, motion being overruled, the case was brought here by appeal.

The matter for decision here is, whether there can be any recovery on a tax bill for street improvement in Kansas City where there was a substantial failure by the contractor to use the quality of material provided for in the contract. The trial court held in the affirmative, and permitted a recovery for the actual value of the pavement, though a large portion of the brick used by the contractor was inferior in quality to that, required by the terms of his engagement.

In the charter of Kansas City, as it existed prior to-the adoption of the new one in 1889, it was declared that, “Such certified bill shall, in all action thereon, be prima facie evidence of the validity of the bill, of the doing of the work, etc.; provided, that nothing in this section shall be so construed as to prevent any defendant from pleading in reduction of the bill * * * that the work therein mentioned was not done in a good and workmanlike . manner.” Section 4, p. 252, Laws, 1875. A like provision occurs in the new charter, but with this addition: “And provided further, if it shall be pleaded and proved that the work for which, the bill was issued was not done according to the terms of the contract made by the contractor with the city, then the plaintiff or plaintiffs shall recover thereon only the actual value of the work done, if of any value, and if of no value, the judgment shall be for the defendant.” City charter, 1889, sec. 18, art. 9.

In Traders’ Bank v. Payne ( 31 Mo. App. 512 , decided in 1888) this court dealt with a case coming under the terms of the old charter.. That was an action to enforce tax bills for paving Broadway with cedar blocks resting on a concrete foundation. The special defense was that this concrete was only six inches in thickness whereas the contract provided it should be *59 nine inches. The holder of the tax bills claimed that, at all events, under the charter of 1875, there should be-a recovery for the value of the work, notwithstanding-the deficiency in the thickness of the concrete. But the right to recover in a reduced amount for. this inferior material was denied, the court, through Judge Philips, using this language: “The special defense pleaded by the defendant here comes not within the terms of the language of the proviso, That the work 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 quality, called for in the contract * * * 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,” etc.

Now, after a consideration of the terms of the old law, as construed by the'courts in 1888, what shall we say was intended by the addition of the aforesaid proviso in the charter of 1889, wherein it was declared, that if “the work for which the bill was issued was not done according to the terms of the contract * • * * then the plaintiff shall recover thereon only the actual value of the work done, if of any value, and if of no value, the judgment shall be' for the defendant.” Was it not meant to extend the scope of the old law (as. construed- by Traders’ Bank v. Payne) and provide for a partial recovery in case of defective material as it was theretofore provided where there was inferior mechanical work? We must think this was the purpose of the amendment. In our opinion, by the “work for which the bill was issued” (as named in the additional clause) was meant to include all that go to make up the completed job — workmanship and eharapter of materials. *60 And if the landowner should plead, and be able to prove, that such work was not up to the requirements of the contract, was defective in any substantial particular, then the holder of the tax bill should only be allowed to recover the real value thereof (limited, of course, by the contract price), or if the work should be of no value to the abutting owner, then the tax bill should be defeated altogether.

We think it was the manifest purpose of the chai’ter amendment of 1889 to bring work of this kind, and the rights of the parties interested therein, within reach of the just and equitable rule so often applied to other building contracts — that is, that although the work has not been done with material of the quality provided for in the contract, yet the contractor will be permitted to recover what such work is reasonably worth to the owner, not exceeding the contract price. Yeats v. Ballentine, 56 Mo. 530 , and cases cited.

The rule finds ready application to the case at bar. The plaintiff charges in his bill, and the court finds, that the contractor in doing this street paving failed to, use the character of brick stipulated in the contract, but put in an inferior quality, which the court finds was worth only ninety-seven and one-half cents, instead of one dollar, ninety-seven and one-half cents per square yard, as was the contract price; and a judgment was rendered accordingly charging the lot owner with such reduced price and no more.

The trial court, too, was fully justified, when, acquiring jurisdiction of the parties, it proceeded to adjudicate and settle the'entire controversy. “It is a well established rule, that where a court of equity once acquires jurisdiction of a cause, it will retain it to do full and complete justice.” Holland v. Anderson, 38 Mo. 55 . And this, too, although the court may pass *61 on a matter cognizable at law. Paris v. Haley, 61 Mo. 453 .

The judgment is for the right party and will be affirmed.

All concur.