5. 6. 7. 8. 9. 10. 11. Lumber Co. v. Owen. : Commencement of Lien. The time of the commencement of the lien of a special taxbill is determined by the statute creating the right to issue the bill. ·: Irregularities: Amendment of Bill. The irregularity in an original special taxbill for a street improvement because issued against three lots jointly may be corrected by the issuance of amended taxbills against each lot, but the lien arises at the date of the issuance of the original bill. -: -: Proper Officer to Sign. Amended special taxbills, issued in lieu of an original bill, which was irregular, are properly signed by the person who, as mayor, signed the original bill, notwithstanding his term of office had expired. -: Performance of Work: Substantial Compliance. A reasonable and substantial compliance, in good faith, with the ordinance and contract for a street improvement is all that the law requires. : : : Sufficiency of Evidence. In an action to cancel a special taxbill for the cost of improving a street in a city of the third class, evidence held to justify a finding that the contractor had reasonably and substantially complied, in good faith, with the ordinance and contract provisions. Although a proceeding to enforce a special taxbill issued for the cost of street improvements is in invitum, and the law, jealously safeguarding the substantial rights of the citizen, does not permit his property to be burdened with a lien for such improvements unless the contractor has, in good faith, fairly and substantially complied with the terms and conditions of his undertaking, according to the true spirit and intent thereof, nevertheless it is not the policy of the courts to demand a highly technical, literal compliance with the contract stipulations, without regard to the obvious intent and purpose thereof, for such would tend to defeat the very objects of the law authorizing municipalities to provide and contract for the making of improvements of this character. : Action to Quiet Title: Counterclaims. Where suit is brought to cancel a special taxbill, defendant may enforce the lien thereof by way of counterclaim, under Sec. 1807, R. S. 1909, as being a cause of action arising out of the transaction forming the foundation of plaintiff's claim or connected with the subject of the action. 12. NEW TRIAL: Appellate Practice: Action on Special Taxbills: Sufficiency of Motion for New Trial. A motion for a new trial on the ground that the court, in rendering judgment on Lumber Co. v. Owen. special taxbills, erred in allowing interest thereon from the date of their issue, and that the verdict and finding were excessive, preserved to the party complaining the right to question the finding as to interest. 13. APPELLATE PRACTICE: Municipal Ordinances: Prerequisites to Review. A municipal ordinance cannot be considered by the appellate court unless it is preserved in the record for review. 14. SPECIAL TAXBILLS: Interest. Where neither the ordinance authorizing a street improvement nor that levying the assessment and providing for the issuance of special taxbills for the cost of the improvement provided for interest, interest was not allowable on the taxbills, although, under Sec. 9254, R. S. 1909, the city could have provided that the bills bear interest at the rate of eight per cent per annum, to begin thirty days after issue. Appeal from Audrain Circuit Court.-Hon. James D. Barnett, Judge. AFFIRMED (conditionally). Fry & Rodgers for appellant. (1) This is a proceeding in in invitum and there should be no departure from legal requirements. Rose v. Trestrail, 62 Mo. App. 352; West v. Porter, 89 Mo. App. 153; Schibel v. Merrill, 185 Mo. 550; Construction Co. v. Coal Co., 205 Mo. 81. (2) There was no estimate of the cost of the work a.s required by the statute. R. S. 1899, sec. 5858, paragraph 8; City of Boonville v. Rogers, 125 Mo. App. 142; Wheeler v. Popular Bluff, 149 Mo. 36; City of Independence v. Briggs, 58 Mo. App. 323; City of Kirksville v. Coleman, 103 Mo. App. 215; City of De Sota v. Showman, 100 Mo. App. 323; Erie v. Brady, 150 Pa. 462. (3) Time was the essence of the contract. The work was not completed within the contract time, on or before January 1, 1909. An ordinance to extend the time, passed in February, 1909, after the expira186 MoApp35 Lumber Co. v. Owcn. tion of the contract time, was of no effect, and the tax bills are void. Neill v. Gater, 152 Mo. 585; Hund v. Rockliff, 192 Mo. 312; Heman v. Gilliam, 171 Mo. 258; Schibel v. Merrill, 185 Mo. 550; Paving Co. v. Munn, 185 Mo. 569; Montague v. Kalmeyer & Co., 138 Mo. App. 288; Construction Co. v. Coal Co., 205 Mo. 49. (4) The original tax bill plaintiff asked to be cancelled was void, because it was a joint tax bill against the three lots. R. S. Mo. 1909, sec. 5252. On defendant's answer voluntarily withdrawing and canceling said tax bill, plaintiff was entitled to a decree. (5) The tax bills were not legally issued and were void. All special tax bills shall be issued by the city. R. S. Mo. 1909, sec. 9254. They shall be "signed by the mayor and attested by the city clerk with the seal of the city attached." R. S. 1909, sec. 9257. (6) Plaintiff was not personally liable for the special taxes. It was not a personal indebtedness nor a mutual indebtedness. The tax bills on which defendant recovered judgment were not in existence "at the commencement of the plaintiff's action." Hence not subject of counterclaim. R. S. Mo. 1909, sec. 1807. The tax bills can be enforced only by the statutory action to subject the specific property to the payment of the tax. This statutory remedy which is an action in rem, is the exclusive remedy. The court erred in entering judgment on defendant's counterclaim. City of Clinton v. Henry Co., 115 Mo. 557; Seibert v. Tiffany, 8 Mo. App. 33. (7) The court erred in allowing eight per cent interest, or any interest, prior to date of judgment. R. S. Mo. 1909, sec. 9254. As the council made no provision for interest and the tax bills were not issued for interest, the court erred in adjudging interest. And especially from date of tax bill when even the council could not have required interest until 30 days after April 12, 1911. R. S. 1909, sec. 9254, paragraph 10. (8) On the facts plaintiff is entitled to a decree. This being an action in equity, the appellate court will re Lumber Co. v. Owen. view the entire evidence regardless of the opinion of the trial court. Where material was not used or the work done as required by the contract, the collection of the tax bills will not be enforced. Schibel v. Merrill, 185 Mo. 550; Coulter v. Construction Co., 131 Mo. App. 235; Cole v. Skrainka, 37 Mo. App. 427, 105 Mo. 303; Herman v. Gerardi, 96 Mo. App. 231; Traders Bank v. Payne, 31 Mo. App. 512; Heman v. Franklin, 99 Mo. App. 346; McGath v. St. Louis, 215 Mo. 207. E. S. Gantt, Philip S. Gibson and David H. Robertson for respondent Owen. (1) The preliminary resolution was sufficient. By reference the plans and specifications were incorporated in the resolution. They were on file at the clerk's office. Bridewell v. Cockrell, 132 Mo. App. 203. (2) The estimate is sufficient. Gratz v. Kirkwood, 165 Mo. App. 209; Boonville v. Stephens, 238 Mo. 339, 355. (3) The work was completed in contract time. The work was actually all done before January 1, 1909, but weather conditions ruined-portions of the curbing and the work thereafter done was merely repair. However, days lost by bad weather were by the ordinance for the work, number 330, to be added to the time. As the work of curbing could not be done until April, 1909, on account of freezing, the time was automatically extended. If the curbing had been stopped at the beginning of freezing weather the contractor would have had the right to postpone the completion until warm weather. However, he attempted to continue with the work and when the freezing weather ruined part of it he was entitled to wait until warm weather to conclude. Pentice v. Schmidt, 202 Mo. 703. The ordinance exhibit 8 is not an attempt to extend the time. The bad weather had already extended it. The ordinance simply recognized this fact and postponed acceptance and issuance of the tax bills until the contractor had rem Lumber Co. v. Owen. edied the defects caused by bad weather. (4) The tax bills set out in the defendant's answer were legally issued. It was within the power of the person who as mayor issued the original tax bills, to amend the same to conform to the requirements of the statute, after he ceased to hold the office and no other person could sign them. Kiley v. Cranor, 51 Mo. 541; Galbreath v. Newton, 45 Mo. App. 312; Riley v. Stewart, 50 Mo. App. 494; Morley v. Weakley, 86 Mo. 450; Stadler, Admx. v. Roth and Meyer, 59 Mo. 400. (5) The tax bills upon which the respondent recovered judgment were a proper subject for a counterclaim in this action. Page and Jones "Taxation and Assessment," sec. 1445, page 2102; Kendig v. Knight, 14 N. W. 78; Smith v. Des Moines, 76 N. W. 836; Henman v. McNamara, 77 Mo. App. 1; The City of Kansas City to the use of Coates v. Ridenour, et al., 84 Mo. 253; Swope v. Weller, 119 Mo. 556. (a) The cause set out in the counterclaim was in existence at the time of the commencement of the action. Cases cited under point 4. (b) The counterclaim in the case at bar comes under the first division of section 1807 of R. S. of Mo. 1909, "cause of action arising out of the contract or transaction set forth in the petition as the foundation of the plaintiff's claim, or connected with the subject of the action." A counterclaim coming within this clause need not exist at the commencement of the action. California Creameries Co., Limited, v. Pacific Sheet Metal Works, 164 Fed. 978; Smith v. French, 13 N. C. 1; 53 S. E. 435. (6) The court properly allowed interest at eight per cent on the tax bills. (7) The contractor cannot be held to a literal compliance with the terms of the contract; substantial compliance is all that is required. Cole v. Skrainka, 105 Mo. 309; Sheehan v. Owen, 82 Mo. 458; Meyers v. Wood, 173 Mo. App. 577; Trimble v. Stewart, 168 Mo. App. 276; Steffen v. Fox, 124 Mo. App. 635; City of St. Louis v. Rueckling, 232 Mo. 23. |